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I am delighted and truly honoured to be able to speak to you tonight to deliver the 2014 Mackenzie-Stuart lecture. President Barroso was speaking in London last Friday where he said: ‘The European Union would not have become what it is today if it weren’t for British politicians and entrepreneurs, British thinkers and British ideas’. Scholars from this University and from its Centre for European Legal Studies have contributed enormously. Looking just to the Union’s Courts, Judges Lord Mackenzie-Stuart, David Edward, Konrad Schiemann, Christopher Vajda and Nicholas Forewood, Advocates-General Francis Jacobs and Eleanor Sharpston are true architects of our Union.
Governments are increasingly turning to the market to provide public goods, works and (perhaps most controversially) services. Markets, and market values, have come to govern our lives as never before and the financial crisis appears to have done little to dampen governments’ faiths in markets. The public procurement rules define some of the parameters within which governments must engage with the market but the ideology of these rules, particularly how much ‘space’ they afford Member States to pursue non-commercial policies in their procurement decision-making, is deeply contested. This chapter argues that there is a missing empirical dimension to these ideological discussions. It seeks to partially redress this by presenting findings from an ethnographic study of a competitive tendering exercise at a British prison, from which it is argued that a more complex ideological picture emerges than appears from doctrinal analyses of the rules.
This chapter examines the implications of the new European economic governance framework from a policy-learning point of view. It is argued that a new form of EU learning influence has emerged in the wake of the EMU legal and institutional crisis. The author takes the view that an inherent asymmetry in the EMU, namely the presence of a unified monetary policy without a commensurate coordination of social policy and wage-setting mechanisms, contributed to the development of the crisis. The latent consequences of this flaw—diverging (wage) growth and cost competitiveness—were brought into full view when the global financial crisis struck. In response, new wage governance instruments were established in order to exert learning pressure on wage development and wage-setting systems in the EU. The substantive orientation of this new framework is examined with an eye to determining whether it qualifies as a learning process under which wage and spending cuts supplant the role of currency depreciation as a means of addressing external economic shocks and competitiveness gaps. Finally, drawing on recent findings concerning the workings of the ‘European Semester’, the chapter assesses whether the new economic governance reforms are already generating learning outcomes at the domestic level.
This chapter explores how the EU is a largely overlooked exporter of normative power through its facilitation and use of clinical trials data produced abroad for the marketing of safe pharmaceuticals at home; a move that helps to foster the growing resort to pharmaceuticals as a fix for public health problems. This is made possible by the EU’s (de)selection of international ethical frameworks in preference to the international technical standards it co-authors with other global regulators. Clinical trials abroad underscore how ethics are contingent and revisable in light of market needs, producing weak protections for the vulnerable subjects of EU law. I argue that these components and effects of the regime are ultimately about that which undergirds, shapes and directs regulatory design. That is, I point to the use, infiltration, perpetuation and extension of market-oriented ideas, values and rationalities into formally non-market domains like biomedical knowledge production and public health. I explain how these are central to efforts at producing and legitimating the EU, its related imagined socio-political order based on a more innovative, profitable and competitive pharmaceutical sector in order to foster economic growth, jobs and prosperity, and with them the project of European integration. ‘Bioethics as risk’ is highlighted as a way to reshape and redirect the regulatory regime in ways that are more consistent with the spirit and letter of the ethical standards (and through them the human rights) the EU claims to uphold.
This chapter discusses the need for a good-faith test for assessing the legitimacy of ongoing and future EU initiatives aimed at contributing to the development and implementation of international environmental law. A test that is based on the international legal principle of good faith may serve to better understand when the EU is effectively supporting environmental multilateralism to the benefit of the international community, rather than seeking to unduly influence it purely for its own advantage. The test is developed mostly on the basis of EU efforts of contributing to climate change multilateralism, and is applied to a much less studied case: the adoption and implementation of the Nagoya Protocol on Access to Genetic Resources and Benefit-sharing under the Convention on Biological Diversity.
Private enforcement is an increasingly prominent element of EU competition law. The forthcoming Directive on damages actions aims to strengthen and, to a degree, harmonise procedures for private competition litigation, while recent case law of the Court of Justice reaffirms the centrality of the right to claim compensation for losses stemming from breach of the competition rules. Moreover, this right has been presented as an essentially unitary one, whereby any victim of any type of competition infringement has, in principle, the right to claim damages. This chapter reviews the evolving framework, and considers, specifically, the role for private enforcement within the overall system of EU competition law. Taking into account the Commission’s efforts to facilitate and increase private enforcement, the emerging EU public enforcement framework, as well as the substantive EU competition rules more generally, this chapter argues that, contrary to the rhetoric, private enforcement is a mechanism best adapted, and arguably most appropriate, for use only in the context of hard-core cartels. It is further suggested that the gap between rhetoric and reality is not problematic as such, yet difficulties may arise insofar as these divergences conflict with the principle of effectiveness.
The principle of mutual recognition tests a potential breach of internal market treaty provisions and restricts the scope for a Member State to justify a breach by reference to what happens, or has happened, in a different Member State. The principle of mutual recognition is a distinct principle to that of non-discrimination and does not apply by reference to the functional equivalence of Member States’ regulatory regimes. Mutual recognition has been developed by the Court of Justice of the European Union (CJEU) as a distinct principle (perhaps a general principle) of EU Law, quite separate to the settled principles of non-discrimination and prohibition of obstacles to market access. The principle of mutual recognition entrenches a neo-functionalist model of the Union project and acts as an accelerant to the harmonisation of the domestic regimes of Member States which are subject to its application, in areas where harmonisation is realistically possible. In areas where harmonisation is not realistically possible, the application of the internal market by reference to the principle of mutual recognition sets aside non-internal-market-compliant Member States’ regulatory provisions, leaving an unsatisfactory space in these regulatory regimes. However, the principle of mutual recognition is, in the light of the application of the principles of non-discrimination and the prohibition of obstacles to market access, quite unnecessary and operates to frustrate legal certainty and the legitimate expectations of the Member States.
For many years now, there has been an attempt in the European Union to create a common legal framework for mortgage credit contracts and cross-border activities in the mortgage financial sector. One of the greatest challenges has been the establishment of a corresponding level of consumer protection in EU residential mortgage markets. This issue has become particularly important at the time of financial crisis. Consumers are increasingly exposed to the risk of losing their homes because of failing to fulfil, in due time, their obligations arising from mortgage loans, and thus losing confidence in the EU financial sector. Therefore, the European Union has intensified its efforts to improve consumers’ ability to inform themselves of the potential risks when entering into mortgage loans and mortgaging their real property. On 4 February 2014 the EU adopted the new rules on mortgage credits in the Mortgage Credit Directive. The main objective of the Directive is to increase the protection of consumers in EU mortgage markets from the risks of defaults and foreclosures. A higher level of protection must be ensured by consumers’ increased information capacity related to mortgage credits, as well as by developing a responsible mortgage lending practice across the EU. The Mortgage Credit Directive is also aimed at contributing to the gradual establishment of a single internal market for mortgage credits. In this chapter, the author analyses previous and current attempts by the EU to establish a uniform market of mortgage loans, and assesses the possible impact of the Mortgage Credit Directive on the protection of consumers in the market of mortgage credits and on the development of cross-border activities in the mortgage financial sector. Special emphasis is placed on the possible impact of the new EU rules on mortgages on national protection measures aimed at consumer protection at the time of financial crisis. The transposition of the Mortgage Credit Directive will undoubtedly contribute to a higher level of consumer protection when consumers enter into home loan contracts. However, the question arises whether, because of different levels of harmonisation of some rules laid down in the Directive, its implementation will actually contribute to an increase in cross-border home loans. The possibility for Member States to opt for increased consumer protection in some aspects of credit agreements when implementing the Directive, or the existence of different options for the exercise of individual rights that they may use cannot bring about an integration of mortgage credit markets.
This chapter aims to understand the general nature of the current economic crisis from a socio-legal, economic, ideological and political perspective and to analyse the complexity of the multiple causes which have led to this crisis. The impact of the crisis on different areas of law is also considered, especially on banking, securities, contract, competition and corporate law. Furthermore, the article aims to criticise law in action and the management of the crisis through political decision-making (state intrusiveness), that is, the various responses and reactions to the crisis and the effectiveness of the measures implemented by policy-makers and enforcers. In particular, this article questions the constitutional legitimacy of the TBTF (Too-Big-to-Fail) theory as a predominant doctrine and criterion of state intervention in the economy. The chapter carries out a multi-layered analysis that covers aspects of economic, social, and political governance. It also draws insights from microeconomics—looking at how economic agents have affected individuals such as consumers—and from macroeconomics—looking at how state intervention in the economy has impacted upon taxpayers and considering the economic and social costs of the crisis. Finally, it approaches the crisis from the perspective of political economy by looking through the lenses of ideology and policy and by reflecting on the role of neoliberalism today.
This chapter addresses the question of how the EU has protected depositors in the financial crisis. The chapter will discuss (1) the impact in Europe of the US system for the protection of depositors, (2) the important changes made to the EU Deposit Guarantee Schemes Directive, first in 2009 in response to the 2007 deposit run on Northern Rock, and then again in 2014 in response to the financial crisis, (3) the decision of the EFTA Court regarding the scope of Iceland’s obligations under the EU Deposit Guarantee Schemes Directive, following the collapse of the Icelandic banking system in 2008, and (4) the introduction of a powerful depositor preference rule throughout the EU, in response to the resolution of the Cypriot banking system in 2013. This chapter argues that the EU has responded to the impact of the financial crisis on bank depositors by enhancing the legal protections available to depositors.
The right to work was until recently under-explored in academic literature and judicial decision-making. Classified often as a social right, it was viewed as a non-justiciable entitlement. Today, as the right to work is sometimes used as a slogan in favour of deregulation of the labour market, as well as a slogan against immigration and unionisation, the analysis of the right to work as part of a labour law agenda is crucial. Against this background, this chapter examines the right to work in the European Convention on Human Rights. Even though the right to work is not explicitly protected in the ECHR, the chapter identifies in the case law of the European Court of Human Rights certain principles that underpin the right to work, which can serve as guidance in the interpretation of existing provisions of the Convention.
The aim of this chapter is to illustrate how the principle of proportionality as derived from the legal orders of the Member States has been incorporated in the legal order of the European Union as well as codified in the Treaties. The chapter revolves around two key arguments. It emphasises, first, that the principle of proportionality has been used as a criterion for controlling the legality of the acts of the Union and of those of the Member States when implementing Union law. Secondly, it is argued that, more recently, the same principle has been used by the Court of Justice of the European Union as a useful instrument towards ensuring an even stronger coordination with national judges.
It appears more and more often that cases brought before the European Court of Justice raise issues relating to two or more fundamental rights and the relation between them. In such situations, it is often necessary to establish a ‘balance’ between the fundamental rights concerned. In some cases, one of the rights involved is not a fundamental right in the strict sense but, for instance, an economic freedom (such as the free movement of goods) recognised under the basic EU Treaties. Another configuration may be a situation where, for instance, two of the fundamental rights which are at issue are to be found in the EU Charter of Fundamental Rights but only one of them appears in the European Convention on Human Rights. In such situations, one wonders what would be the relevance of Article 52(3) of the Charter of Fundamental Rights, which establishes a direct link between the Charter and the European Convention. The present contribution will look at the question of balancing of EU fundamental rights in general and also at more specific problems arising in this context, such as the two problems identified above.