Directive 2014/40—the new Tobacco Products Directive—was unsuccessfully challenged in three cases, Philip Morris, Poland v. European Parliament and Council, and Pillbox 38. This Article examines provisions of the Directive relating to some alternative tobacco and related products, both in terms of exercise of EU competence and substantive regulation of these products. The main flavored tobacco products can no longer be placed on the market. Electronic cigarettes are regulated by the Directive, as the initial provisions of the Commission proposal were substantially amended. The new Tobacco Products Directive reproduced the prohibition of tobacco for oral use, already at issue in the Swedish Match and Arnold André cases, and again subject of another preliminary ruling reference by Swedish Match, the Advocate General's Opinion having concluded in its validity. The Directive also provides the possibility for Member States to prohibit categories of tobacco or related products. Parallel to its analysis of their substance in terms of health regulation, this Article considers European Union competence issues relating to these provisions and examines the adequacy of the Article 114 TFEU internal market legal basis as well as compliance with the principles of proportionality and subsidiarity.

The case of Carles Puigdemont underlines that European criminal law is in a crisis of confidence. The Higher Regional Court of Schleswig-Holstein has rejected a Spanish European arrest warrant for the criminal offence of rebellion because it lacks double criminality. It applied German law de lege artis without, however, questioning the European legal framework. The case would have provided an opportunity to refer the matter to the European Court of Justice for a preliminary ruling in order to further specify the European law criteria of double criminality. This would have been the adequate legal response to a politically explosive case. In the end, the Spanish judiciary sees itself disavowed and the system of the European arrest warrant called into question.

The right to data portability (RtDP) introduced by Article 20 of the General Data Protection Regulation (GDPR) forms a regulatory innovation within EU law. The RtDP provides data subjects with the possibility to transfer personal data among data controllers, but has an impact beyond data protection. In particular, the RtDP facilitates the reuse of personal data that private companies hold by establishing a general-purpose control mechanism of horizontal application. Article 20 of the GDPR is agnostic about the type of use that follows from the ported data and its further diffusion. We argue that the RtDP does not fit well with the fundamental rights nature of data protection law, and should instead be seen as a new regulatory tool in EU law that aims to stimulate competition and innovation in data-driven markets.

What remains unclear is the extent to which the RtDP will be limited in its aspirations where intellectual property rights of current data holders—such as copyright, trade secrets and sui generis database rights—cause the regimes to clash. In such cases, a reconciliation of the interests might particularly confine the follow-on use of ported data again to specific set of socially justifiable purposes, possibly with schemes of fair remuneration. Despite these uncertainties, the RtDP is already being replicated in other fields, namely consumer protection law and the regulation of non-personal data. Competition law can also facilitate portability of data, but only for purpose-specific goals with the aim of addressing anticompetitive behavior.

We conclude that to the extent that other regimes will try to replicate the RtDP, they should closely consider the nature of the resulting control and its breadth and impact on incentives to innovate. In any case, the creation of data portability regimes should not become an end in itself. With an increasing number of instruments, orchestrating the consistency of legal regimes within the Digital Single Market and their mutual interplay should become an equally important concern.

In James Elliott v. Irish Asphalt, the Court of Justice of the Union addresses the interplay between the EU legal order and harmonized standards—i.e. non-binding technical specifications for products drafted by private bodies upon request of the Commission. The judgment offers interesting insights from the public law and the private law points of view. This Article touches upon both aspects. First, it considers that the Court extends its jurisdiction over harmonized standards under Article 267 TFEU, thus paving the way for a deeper intersection between European judiciary and technical standardization. Second, the paper highlights the Court's understanding of the interplay between harmonized standards and national private law. In this latter regard, it is argued that a rigid separation between technical standards and legal provisions might be excessively formalistic considering the use of technical standards in practice.

The free movement provisions enable EU citizens to follow their own ethical preferences by going to a Member State that has made a different ethical choice from their home Member State. However, UK citizens who have assisted suicide or euthanasia abroad could be criminally prosecuted on their return to England. This possibility of a criminal prosecution constitutes a restriction on free movement. Nevertheless, the free movement provisions have so far not been used to challenge the English prohibition of euthanasia. The aim of this article is to show that, based on its ultimate aim, free movement law does have a legitimate role to play in ethical issues. The internal market is based on a principle of recognition, which forces Member States to engage with regulatory choices made by other Member States. This also applies to ethical issues. Member States are not required to justify the existence of different ethical choices. However, if they decide to restrict free movement, they have to be able to show that these differences in fact exist. This approach achieves a balance between the right of citizens to make their own ethical choices, and the ability of Member States to protect their legislation on ethical issues.

Modern federations are faced with the challenge of cross-state as well as cross-nation economic activities and with the ever-increasing mobility of society. This has not only promoted international law, but has also created the need for harmonized laws throughout federations within the competence areas of the states. Diverse laws within federal systems may increase transaction costs, cause delays, and lead to jurisdictional conflicts for nationwide or cross-state transactions. In order to preserve federalism, and therefore prevent an ever-advancing process of centralization, interfederal legal harmonization promoted by the states themselves is crucial. There are two distinct methods of legal harmonization of state laws: (1) harmonization by “Uniform Law Conferences,” which are in principle run by lawyers and thus independent, to a certain extent, from the influence of policy makers; and (2) harmonization by executive intergovernmental conferences. These two distinct models of interfederal legal harmonization will be analyzed and evaluated with regard to efficiency, compatibility with democratic principles, transparency, and accountability in a comparative legal study of the harmonization processes. This Article will scrutinize the federal systems of the United States and Canada, on the one hand, as well as those of Germany and Austria, on the other hand. The study will reveal that the efficiency of interfederal legal harmonization increases with the level of intergovernmental integration through the participation of government officials and their staff.

This Article uses a combination of doctrinal and comparative analyses to elucidate the most widely-used criteria according to which courts characterize an act as having a private-law nature. Further, this Article identifies the extent to which the Turkish State practice has embraced those criteria. To that end, this Article extracts two such widely-used criteria from patterns in customary State practice. In the end, the Article points out the extent to which those criteria are prevalent throughout the Turkish court rulings and concludes that Turkish caselaw is generally in alignment with the customary State practice in terms of the criteria used to determine a State act's private-law nature.

This Article compares the French and Italian experiences with gender quotas—understood as mechanisms intended to increase women's participation in public life, including but not limited to, the reservation of seats in certain positions and the modulation of electoral lists— in public entities such as legislative and executive bodies (including political parties), the judiciary, and public universities. The comparison between France and Italy demonstrates that even between two countries whose constitutional history and trajectory with regard to gender quotas has been portrayed as being essentially identical, a closer analysis of the recent developments in both countries’ constitutional and administrative case law shows a slightly more nuanced picture. Using Rodolfo Sacco's approach of legal formants, this Article argues that the difference stems mainly from the different attitude and interpretation of equality by the judicial formant.

The Cosmopolitan Constitution is an intriguing and puzzling book. In particular, the book has the uncanny ability to render fresh what is for the constitutional theorist familiar territory such as the debate on judicial supremacy and the counter-majoritarian difficulty, the expansion of the proportionality principle, etc. In fact, one of the most interesting aspects of its overarching argument is that given our present conditions—such as those of the cosmopolitan constitution or constitutionalism 3.0—we should be increasingly plagued by self-doubt, at least to the extent that we are to remain committed to the tenets that once animated our constitutional traditions. This implies that the partial sense of disorientation with which one is left after reading the book is deliberately provoked precisely because of the main insights it has to offer.

A major contemporary shift in constitutionalism is manifest in that domestic constitutions, to an unprecedented degree, submit themselves to legal regimes and agencies beyond the state. This is epitomized in national courts taking into account foreign precedent within the system of the European Convention on Human Rights and the government of the Eurozone crisis by the executive apparatus of the European Union (EU). Alexander Somek's The Cosmopolitan Constitution is one of the most important monographs that endeavors to conceptualize this contemporary shift in constitutionalism. This response, however, highlights that the EU plays an uneasy role in the tale of The Cosmopolitan Constitution. The argument presented is that there are reasons to question the Eurocentrism that posits European post-WWII constitutional developments as the epitome of contemporary global constitutional developments. These reasons relate to the particularity of the European post-WWII political and constitutional experiences and developments. In contrast to what is maintained by Somek, this response argues that contemporary European trends in constitutionalism do not point in the direction of a universal cosmopolitanism but express a distinct European particularity.

This comment engages with Somek's account for the cosmopolitan constitution for two distinct purposes. It first builds on its inherent ambivalence to argue that hitherto Europe has experienced at least two different versions of the cosmopolitan constitution. Whereas in the formative period of the process of European integration, the cosmopolitan constitution manifested itself prevailingly in its more benign and democracy-enhancing political face, since the end of the 1970s it has developed a more controversial and democracy-inhibiting administrative profile. Secondly, the comment rejects as potentially regressive the proposal of redressing the biases inherent in the contemporary legal and political order by reviving the idea of a Machiavellian mixed constitution. To fulfill the promise of emancipation inspiring constitutionalism, the cosmopolitan constitution cannot segregate in separate institutions ordinary citizens and a market elite. Rather, the cosmopolitan constitution should be re-imagined with a view to reassert its original democracy-enhancing spirit and adapt it to the evolving circumstances of economic and political interdependence.

My book claims that constitutionalism is about constraining the exercise of public power in a legal manner. What it studies are different renderings of this idea and how one can arrive move from one to the next. What is essential to the success of the enterprise is, first, elaborating the relevant ideal types; second, analyzing how the transitions are made from one to the other; and third, taking public law as a way of conceiving of human practice, namely as activity that is essentially amenable to normative guidance and constraint. The people working and thinking in the world of public law use language that betrays ontological commitments to conspicuous entities such as “powers,” “values,” or “conventions.”