This chapter first considers the more formal basis for the relationship between international law and European Union (EU) law by looking at the international law framework of EU law. It then discusses the approach of the EU legal order to international law and the various ways in which the two legal orders interact within the EU legal order. The chapter also considers reasons for and implications of the CJEU's approach. The Court of Justice of the European Union (...) (CJEU) has held that customary international law (CIL), just like treaty law, is a standard of assessment in the review of the validity of EU secondary legislation, thus ranking CIL more highly within the EU legal order than secondary legislation. Treaties in the area of human rights have enjoyed a relatively strong role within EU law, either by interpretation or by linking them to general principles of law. (shrink)

This chapter examines the role of law in European Union (EU) external relations from two perspectives. First, it examines the EU as a rule‐based (international) actor Law and focuses mainly on EU law‐ governs both the extent of the European Union's external powers and their exercise, the constitutional foundations of EU external relations and the legal principles that govern external action. Second the chapter turns to the European Union's characteristic use of law as an instrument and objective of its (...) foreign policy, the European Union as a promoter of a rule‐based international order. The role of the Parliament in the conclusion of international treaties, which are often regulatory or quasi‐legislative in character, brings to the final theme of this contribution: the role played by law as both an instrument and a goal of EU foreign policy. (shrink)

Economic diplomacy is known as a symbol of the European Union and represents its primary function. With the development of science and new ways of communication, the European Union can organize a new approach for its economic diplomacy. The main advantage of the European Union as a soft power is that its economic and diplomatic interests are represented in a manner that is based not on confrontation but economic collaboration with other states. The disadvantage is that this domain is presently (...) not used enough to represent EU interests. This paper describes economic diplomacy in general and the economic diplomacy of the EU in particular. Divided into three parts, the goal of this study is to outline the importance of economic diplomacy, its evolution, the influence of this domain on the creation of previous economic treaties, and its possible future impact on the development of new agreements between the European Union and its neighbor countries. The main methodology used is descriptive, presenting the evolution of this field and the new business strategies that can be used to improve cooperation at the eastern border of the European Union. Therefore we present here the historical background of EU economic diplomacy, its present issues and future challenges. The quantitative data used in this research paper are based on information from EU websites and on the actual events concerning debates about economic diplomacy and its future. The research questions presented herein follow the general evolution of this domain and its mutual influence with EU’s businesses strategies. (shrink)

This chapter reexamines the case law of the Court of Justice of the European Union (CJEU) through the prism of the modern structure of the foundational treaties of the EU: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty has reshaped the structure of the positive law of the EU, marking a new stage in the process of creating a closer union. For EU procedural law, this has led (...) to the formal establishment of three focal points which reflect the issues involved. At one extreme, are general principles of EU law, which have constitutional status including the general principle of effective judicial protection. In the middle of the spectrum are two provisions which recognize the balancing of national and EU interests required at the procedural level. Finally, the treaties recognize the possibility for substantive regulation at the EU level. (shrink)

The European Union (EU) has developed a vast body of environmental law, relying on a treaty title setting out normatively and descriptively complex environmental principles and approaches, as well as on those parts of the treaties focusing on the internal market. This chapter provides some introductory insights into EU environmental law. It explores that the Industrial Emissions Directive (IED) shows the potential of an approach to governance that sets environmental norms in a collaborative, problem‐solving forum beyond the face of (...) legislation. The chapter shows harmonization is not a straightforward category in EU environmental law. Much was made of the decentralization and local or national flexibility in the predecessor to the IED. By comparison, the IED places greater emphasis on the mandatory application of EU‐wide environmental standards. However, both the initial decentralization and the recentralization are highly ambiguous. (shrink)

The scope of European Union competence was central to the reform process that culminated in the Lisbon Treaty. The Lisbon Treaty competence provisions borrowed heavily from those in the Constitutional Treaty. Some provisions are contained in the Treaty on European Union (TEU), but the detailed schema is in the Treaty on the Functioning of the European Union (TFEU). Article 2 TFEU is the foundational provision, setting out the categories of competence and the consequences that flow from them. Article 2(1) TFEU (...) establishes the category of exclusive competence, which carries the consequence that only the Union can legislate and adopt legally binding acts. Article 2(2) TFEU defines shared competence. The treaty schema for competence in Article 2 TFEU is premised on the ascription of legal consequences for EU and member state power as the result of coming within a particular category. Article 5 TFEU is an exception in this respect. (shrink)

This chapter presents an analysis of complex constitutional framework, examining institutional developments brought about by the Maastricht and Amsterdam Treaties and by focusing in particular on the major institutional changes brought about by the entry into force of the Lisbon Treaty. It illustrates how European integration in criminal matters has been organized over time. The chapter examines the extent of European Union (EU) competence to harmonize national legislation in the field of substantive criminal law and European integration in criminal (...) matters via the application of the principle of mutual recognition to criminal law and justice. It then explores harmonization of criminal procedure in order to facilitate the operation of mutual recognition and European integration via delegation, by an examination of the powers and interrelationship between various EU bodies and agencies in the field of criminal justice. The chapter describes the external dimension of EU action in criminal matters. (shrink)

Citizenship of the European Union is a status that is held by every person who is a national of a member state of the Union. This chapter examines the history of Union citizenship, where it came from and how it developed over time. It then discusses the rights and duties of citizenship of the Union, explaining what they are and how they can be accessed. The chapter also looks at what citizenship of the Union means and where the issues are (...) regarding its relationship with nationality of the member states. Article 20(1) Treaty on the Functioning of the European Union (TFEU) contains the genesis and determination of the status of citizen of the European Union. Citizenship of the Union shall be additional to and not replace national citizenship. Finally, the chapter comments on some of the current political challenges for this citizenship. (shrink)

State aids law has become a major subject in its own right. Article 107 of the Treaty on the Functioning of the European Union (TFEU), which lays down the substantive rules on state aid, and Article 108 TFEU, which provides for the procedural rules, form part of the treaty chapter on competition. However, there are now several important pieces of legislation. The first is Council Regulation 994/98/EC, which applies Articles 107 and 108 TFEU. The gist of the regulation is that (...) the Commission is authorized to adopt block exemptions for certain categories of aid. On this basis, the Commission has adopted a number of regulations, which will be discussed in this chapter. The enforcement of the state aid rules by the Commission has been essential in containing the crisis. The Commission efforts have been supplemented by the policies of the European Central Bank, which provided enhanced credit support. (shrink)

Four decades have passed since the EU and China established diplomatic relations in 1975, and now became mutually indispensable economic partners, presenting both an opportunity and challenge. During that time, after the first market reforms were introduced in 1978, China has transitioned from a predominantly agricultural to industrial and service-oriented economy. On 11 December 2001, China also became the 143rd member of the WTO. The aim of this research is to quantitatively compare the US, EU and Chinese GDP from 1995 (...) to 2014, the US and Chinese outward FDI from 1995 to 2013, and the EU 28 Total Imports from and Exports to the US and China between 2002 to 2014, and analyse the impact of the exponentially rising Chinese investments in the European Union (EU). We have found that while the US economy experienced a regression in general, and exhibited outward FDI exponential decrease in particular, the Chinese outward FDI sustained an exponential growth. Our analysis has shown that the now weakened US dollar and diminished US economic and industrial power, along with the US designed and archaic post World War II European institutions, vitiated by the recent US Economic Recession, which has swept along the EU and all other US dependent foreign economies globally, are and will continue to experience the primary impact of the exponentially rising economic investment of China in the EU. Furthermore, we have found that the Chinese economic growth has been affecting both the EU identity and policies. Yet, its full effect is waiting to be realized. The Chinese investment in the EU is estimated to peak during the next decade, when China will become by far the foremost economic partner of the EU. This crossroad may be reached as soon as in few years’ time and contribute towards the EU – Asian regional stabilization. In the changing context of the Sino – EU - US relations, due to the exponentially growing economic prosperity and rising global influence of China, the EU international institutions and socio-political structures will re-emerge with the once forgotten access to the 21st Century Silk Road Economic Belt, “The Silk Road II”, between China and the EU in the foreseeable future. (shrink)

The process of elaborating EU legislation includes the activity of translation. Drafting and translation cannot be considered separately but are rather two complementary activities whose aim is the quality of legislation. In order to achieve the required quality of legislation, one guiding principle is consistency of terminology. This study examines the particular case of two terms in German that appeared in the EC Treaty: Entscheidung and Beschluss. The inconsistent use of the two terms was the source of interpretative problems, as (...) observed in Case C-370/07 Commission v Council. A comparison of the contested provisions in the EC Treaty and the provisions in the Treaty on the Functioning of the European Union shows that the terminological inconsistency has been corrected. After the examination of this case, we elaborate on the impact of terminological consistency on interpretation as reflected in requests for preliminary rulings. (shrink)

According to the International Relations theory known as Realism, interstate interactions, whether ancient or modern, are motivated by the pursuit of hegemony of individual states, which act as monolithic groups in articulating their foreign policy decisions. The application of Realism to the study of Spartan foreign policy in the third century BC shows the validity of this theory in explaining certain aspects of ancient interstate interactions, as illustrated by the two alliances discussed in this article. The first, earlier alliance, (...) between King of Macedonia Antigonos Gonatas and Sparta and some Peloponnesian cities, was made in response to the threat posed by King Pyrrhus of Epirus who was set on conquering them. The later alliance, between Sparta and other states, was made to stop the ambitions of King Antigonos Gonatas who controlled many cities of the Peloponnese and sought to conquer the whole of Greece. In forging such alliances, according to the Realist view, the states acted as large monolithic groups, yet a broader assessment of the available evidence shows the presence of smaller, subtler networks of individuals, which were paramount in articulating important foreign policy decisions. The comparison of Spartan decision making with the activation in 2009 of the EU’s Solidarity Clause, included in Article 222 of The Treaty on the Functioning of the European Union (TFEU), indicates that the activation of this clause too required the consensus of several European governing bodies. By bringing to light the critical role played by smaller networks of power in foreign policy decision making in the ancient and the current-day EU alliances, this article exposes both the merits and the limits of the Realist international relations theory. (shrink)

The article aims at resolving the issue whether the Court of Justice of the European Union (CJEU) has an exclusive jurisdiction under Article 344 of the Treaty on Functioning of the European Union (TFEU) to resolve disputes between Member States, stemming from provisions of an international treaty, a party to which is the EU. This problem is especially relevant in cases when a mixed international agreement envisages independent institutions of dispute resolution. The position of the CJEU is expressed (...) in the case of Mox Plant. The European Commission applied to the CJEU against Ireland, because it considered that Ireland, which started an arbitration procedure against United Kingdom under the UN Convention on the Law of the Sea, has infringed the exclusive jurisdiction of the CJEU under Article 344 of the TFEU. The EU is also a Contracting Party to the UN Convention on the Law of the Sea. Therefore according to the consistence case practice of the Court, the provisions of the Convention that fall under the competence of the Union constitute an indivisible part of the EU legal system. Only in such case when a provision of a treaty is attributed to exclusive competence of the Member States, the jurisdiction of the CJEU regarding that provision can be negated. Thus, when deciding on the issue of exclusive jurisdiction of the CJEU in principle, a problem of attribution of the EU and Member States’ competences arises. (shrink)

In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European constitution. (...) Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is. (shrink)

The Schuman Plan was enthusiastically endorsed by the Benelux countries, France, Germany, and Italy, but the United Kingdom declined to participate, refusing to accept the supranational role of the projected High Authority. The treaty Establishing the European Coal and Steel Community (ECSC) was signed in Paris on 18 April 1951. The European Economic Community (EEC) has provided the core framework for the process of European integration. The Single European Act (SEA) also inserted into the EEC Treaty a number of specific (...) new legal bases for Community action. The treaty provisions were superseded by the Treaty on European Union (TEU), which provides the legal basis for the common foreign and security policy (CFSP). The Reform Treaty was to shed the form, language, and symbols of a European Constitution in favor of having another amending treaty, similar in nature to the SEA, Treaty of Amsterdam (TA), or Treaty of Nice (TN). (shrink)

In the post-Single European Act period, debates around European identity have intensified, particularly in the context of EU enlargement. The EU’s move to being a supranational political entity in the past two decades has caused serious concerns in some sections of the elite and people across the EU member states. While French and Dutch rejections of the constitutional treaty set an important milestone, Turkey’s quest for the EU membership has complicated to a great extent controversies on European identity. The reviewed (...) books here contribute to efforts to understand the extent to which European identity and Turkey’s bid for the EU membership has entangled. It is more likely to witness debates around both European identity and Turkey’s candidacy for the Union for many years to come; therefore, these books will more likely remain relevant for the academic and policy circles. (shrink)

In our increasingly interactive and interdependent world, we are confronted almost daily with issues in international law: think, for instance, of the recent Pinochet and Öcalan cases, the crises in Iraq, Kosovo and East Timor, or the banana and hormone disputes in the WTO. Add to this continual reports about the activities of international organizations, from the UN to the European Union, and it becomes clear that international law is the order of the day. Whoever follows these (...) international developments, as I do, and whoever is committed to the construction of a solid legal order for the international community, finds himself constantly torn between hope and despair. Signs of hope in recent years include the approval of a statute for the International Criminal Court in Rome on July 17, 1998; the Pinochet decisions of the House of Lords of November 1998 and March 1999; and the coming into force of the Ottawa agreement on anti-personnel mines in March of 1999. Yet who could witness the course of events during the NATO bombing campaign in Yugoslavia, and the long period of UN inaction against the violence that broke out in East Timor following the referendum, without feeling some sense of desperation? The mood of the present day, however, should not prevent us from taking a long-term perspective. What kind of international legal order are we moving towards on the threshold of the twenty-first century? Building up a solid international legal order is probably one of the greatest challenges facing humanity at present. Our national legal systems are strongly developed and during the last fifty years, Western Europe has succeeded in constructing an EU legal order which has made possible a peaceful society, welfare and the integration of peoples in Europe. But where do we stand on the world level? Is international law not all too slowly limping behind globalization? And yet, the century we are looking back on has been the century in which international law and the law of international organizations flourished: in the framework of the League of Nations, and then the UN, we have succeeded in codifying, consolidating and developing international law in numerous multilateral treaties ranging from human rights and maritime law to international labour, trade and environmental norms. Never before had the world witnessed such an extensive network of international organizations . Never before did states make such intensive use of treaties for arranging their mutual concerns: more than 30,000 are registered at the UN. (shrink)

In our increasingly interactive and interdependent world, we are confronted almost daily with issues in international law: think, for instance, of the recent Pinochet and Öcalan cases, the crises in Iraq, Kosovo and East Timor, or the banana and hormone disputes in the WTO. Add to this continual reports about the activities of international organizations, from the UN to the European Union, and it becomes clear that international law is the order of the day. Whoever follows these (...) international developments, as I do, and whoever is committed to the construction of a solid legal order for the international community, finds himself constantly torn between hope and despair. Signs of hope in recent years include the approval of a statute for the International Criminal Court in Rome on July 17, 1998; the Pinochet decisions of the House of Lords of November 1998 and March 1999; and the coming into force of the Ottawa agreement on anti-personnel mines in March of 1999. Yet who could witness the course of events during the NATO bombing campaign in Yugoslavia, and the long period of UN inaction against the violence that broke out in East Timor following the referendum, without feeling some sense of desperation? The mood of the present day, however, should not prevent us from taking a long-term perspective. What kind of international legal order are we moving towards on the threshold of the twenty-first century? Building up a solid international legal order is probably one of the greatest challenges facing humanity at present. Our national legal systems are strongly developed and during the last fifty years, Western Europe has succeeded in constructing an EU legal order which has made possible a peaceful society, welfare and the integration of peoples in Europe. But where do we stand on the world level? Is international law not all too slowly limping behind globalization? And yet, the century we are looking back on has been the century in which international law and the law of international organizations flourished: in the framework of the League of Nations, and then the UN, we have succeeded in codifying, consolidating and developing international law in numerous multilateral treaties ranging from human rights and maritime law to international labour, trade and environmental norms. Never before had the world witnessed such an extensive network of international organizations . Never before did states make such intensive use of treaties for arranging their mutual concerns: more than 30,000 are registered at the UN. (shrink)

We analyse the projected future evolution of the distribution of voting power and related quantities under the qualified majority decision rule for the Council of Ministers of the EU, prescribed by the forthcoming EU Reform Treaty. Our projections are based on the demographic changes forecast by eurostat [4] for the period stretching from the present to the middle of the 21st Century. We use a method similar to the one we used in [6], [7], [8] and [9].

After the UN Guiding Principles on Business and Human Rights were adopted in 2011, an international treaty has been being negotiated since 2014. The two instruments reveal similarities and also conflicts regarding the adequate organization of the global economy based on human rights. The focus in this article will be on the processes leading to these instruments, because they themselves mirror different understandings of governance in the field of business and human rights as well as the struggle over the (...) power of definition and legitimacy. The UNGPs were developed on the basis of global multi-stakeholder consultations, underlining legitimacy through broad inclusion. There are varying judgements as to the success of this approach. The process towards the treaty follows the traditional path of negotiations at UN level. These negotiations reveal a struggle for recognition of the legitimacy of the process itself. Both procedures have shortcomings with regard to legitimacy and show the need for a revision concerning the inclusion of stakeholders. The complementarity of a soft and hard law instrument may enhance the creation of a level playing field in the global economy, thereby strengthening human rights. (shrink)

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 265-276.

This book represents a unique endeavor to elucidate the story of Kosovo's unilateral quest for statehood. It is an inquiry into the international legal aspects and processes that shaped and surrounded the creation of the state of Kosovo. Being created outside the post-colonial context, Kosovo offers a unique yet controversial example of state emergence both in the theory and practice of creation of states. Accordingly, the book investigates the legal pathways, strategies, developments and policy positions of international agencies/actors (...) and regional players (in particular the EU) that helped Kosovo to establish its independence and gradually acquire statehood. Although contested, Kosovo, and its quest for statehood, represents a unique example of successful unilateral secession. The book therefore explores and analyses patterns of state formation and nation-building in Kosovo, and its transition to democracy. It presents a three-level assessment. First, seen from a historical perspective, the book examines the validity of the right of Kosovar-Albanians to self-determination and remedial secession. Second, from a legal positivist perspective, it scrutinizes all of the legalist arguments that support Kosovo's right to statehood, and claims that both traditional and legality-based criteria for statehood remain insufficient to determine whether Kosovo has achieved statehood. Third, from a post-factum perspective, the book analyzes the scope and extent to which the internationally blended element was decisive in Kosovo's state-formation and state-building processes. It explains how the EU's involvement as an 'internationally blended element' in Kosovo's efforts to achieve statehood was instrumental and played a crucial role in shaping the emerging state. In particular, the book elaborates on how the EU was able to streamline its mode of intervention in the context of state-building and reform. (shrink)

At its meeting on 16 June 2005, the European Council decided to postpone its introduction of the European Constitution, originally planned to come into force on 1 November 2006. As the Treaty establishing a European Constitution could in principle only take effect if all the Member States agree, following the clear rejections in the French referendum on 29 May 2005 and the Dutch referendum on 1 June 2005 , the Member States needed a period of reflection, a search for explanations (...) and debate. The European Council did not feel that the date initially planned for a report on the ratification of the treaty was still tenable, since those countries which had not yet ratified the treaty would be unable to provide a clear reply before mid- 2007. But the process of ratification by the Member States was not abandoned. The timetable was adjusted to reflect the circumstances in the countries which had not yet ratified the treaty. This period was intended to regain the trust of the general public. (shrink)

The establishment of the Common European Asylum System by 2012 remains a key policy objective for the European Union. According to the Council of the European Union, the development of a Common Asylum Policy should be based on a full and inclusive application of the 1951 Geneva Convention Relating to the Status of Refugees and other relevant international treaties. In the European Pact on Immigration and Asylum attention is brought to the persistence of wide disparities amongst Member States (...) in the granting of protection and the form of protection granted. This is seen as one of the main problems to be addressed in building the CEAS. It is fairly obvious that existing divergences in policy have a substantial impact upon the aims of the CEAS. It can be assumed that the difference in governmental practices involving recognizing asylum seekers on refugee grounds or subsidiary protection grounds may be a substantial factor in the decision-making process on where to apply for international protection. The European Commission stressed the importance, during the second phase of the CEAS, of paying particular attention to subsidiary and other forms of protection. (shrink)

This chapter discusses the application of international humanitarian law (IHL) to EU military operations outside of the European Union (EU). It describes where the Union has performed best: promoting the development, acceptance, and respect of IHL by others. EU restrictive measures may be taken in its commercial policy, its foreign and security policy, and its development cooperation policy. A field in which the European Union may have a direct impact on violations of IHL is the export of arms. EU (...) member states continue to be involved in armed conflicts, but EU law did not govern their involvement. Therefore, the relationship between IHL and EU law is fortunately not (yet) an issue of daily concern for practitioners and EU institutions. In the instances in which the European Union has been a military actor abroad, IHL arguably did not apply because the Union had not become a party to an armed conflict. (shrink)

This article interrogates whether and how the concept of ‘patriarchy’ is used by UN human rights treaty monitoring bodies (treaty bodies) and special procedures to interpret state obligations to respect and ensure women’s human rights. There are two key points that arise out of this study: first, that several treaty bodies and special procedures purposely and consistently use the concept of ‘patriarchy’ when discussing women’s human rights, and second, that although not all treaty bodies and special procedures have referred to (...) the terms ‘patriarchy’ or ‘patriarchal’, an examination of those that have reveals a marked difference in how the terms are used by treaty bodies when compared with special procedures. While treaty bodies render the meaning of ‘patriarchy’ as being synonymous with certain harmful practices, such as female-genital mutilation (FGM), special procedures utilise ‘patriarchy’ as a system of power, permeating every facet of society. In this article I will argue that the current state of dissonance between the understandings of ‘patriarchy’ by treaty bodies and special procedures creates an unnecessary ambiguity that does nothing to advance gender equality. Furthermore, utilising a nuanced understanding of patriarchy, as articulated by intersectional and anti-essentialist feminist scholars, would potentially equip treaty bodies and special procedures for more meaningful interpretation of rights themselves, and greater protection of women’s human rights. (shrink)

This study investigates the determinants of the ratification of International Covenant on Economic, Social, and Cultural Rights (ICESCR). To do so, it proposes an explanation that postulates that states employ treaty ratification as a device to signal their resolve to implement polices required by the treaty at issue in order to appease demanding domestic constituencies, predicting that states with lower compliance capacity tend to commit faster than states with higher compliance capacity. Applying this explanation to the ICESCR leads to (...) two expectations. First, the larger government spending a proxy of high compliance capacity is hypothesized to delay the ratification process. Second, states with the unitary system are expected to ratify the ICESCR more promptly because the centralized power structure in unitary states significantly restricts the pursuit of the policy autonomy by minorities at local level that the right to self-determination entails. The Cox proportional hazard analysis lends support to both hypotheses. (shrink)

This article conceptualizes corporate accountability under international law and introduces an analytical framework translating corporate accountability into seven core elements. Using this analytical framework, it then systematically assesses four models that could be used in a future business and human rights treaty: the United Nations Guiding Principles on Business and Human Rights model, the Universal Declaration of Human Rights model, the progressive model, and the transformative model. It aims to contribute to the BHR treaty negotiation process by clarifying different (...) options and possible trade-offs between them, while taking into account political realities. Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporate accountability, which combines ambitious development of international law with realistic prospects of state support. (shrink)

In the Coman case, the European Court of Justice was asked whether the term “spouse”—for the purposes of EU law—includes the same-sex spouse of an EU citizen who has moved between EU Member States. The ECJ answered this question affirmatively, holding that a refusal to recognise a same-sex marriage and the resultant refusal to grant family reunification rights to a Union citizen who moves to another Member State, would constitute an unjustified restriction on the right to free movement that Union (...) citizens enjoy under EU law. This case comment analyses the judgment, arguing that the Court’s pronouncement is a very welcome first step towards marriage equality at a cross-border level in the EU. At the same time, following the delivery of this ruling, a lot of questions have arisen and gaps in the protection of same-sex couples persist, and these are also analysed in this piece. (shrink)

Internal protection alternative (further—IPA) as the element of refugee definition is interpreted very differently in the practice of the State Parties to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (further—Geneva Convention). Thus it is important to regulate this concept clearly in the EC directive 2004/83/EB (further—Qualification directive) and its coming amendments. The definition of the IPA concept does not contain adequate criteria for assessing the level and effectiveness of protection required, in line with the (...) Geneva Convention and the ECHR, thus allowing Member States to reject claims and return applicants to their country of origin despite the lack of effective protection. Moreover, this concept is defined in a broad and vague manner which creates a risk of diverse recognition practices. (shrink)

This article traces the history of the earliest bilateral tax treaties which were concluded prior to World War I. There are currently over 3000 bilateral tax treaties in existence and their fundamental concepts and terms can be traced back to the earliest treaties. This article explores the political and economic context of the early treaties to understand why countries entered into tax treaties. Tax treaties play an important role in facilitating economic integration and as (...) the European Union and other regional blocs seek to establish a single market, the historical context of tax treaties can assist in understanding their role in modern international economic relations. (shrink)

This article argues that obligatory, simultaneous, and simple Treaty ratification by referenda is the next step in the consolidation of the political core of European citizenship. In the first part, general remarks about the special nature of EU citizenship highlight the relevance of referenda on EU Treaties for EU citizenship. In the second part, the normative and empirical case in favour of direct democracy is put forward. It is followed by the assessment of direct democracy in European integration as (...) we have known it so far. The practice is irreversible and gaining in momentum. But it is in need of substantial reform due to procedural dysfunctions and discriminatory consequences for the citizens. Section V relates this result to a legal analysis of EU citizenship. The suppression of the discriminatory consequences of the Treaty ratification procedure is necessary from a legal point of view, but it cannot be expected from the 'judicial incrementalism' that has characterised the development of EU citizenship regarding free movement and residence. In section VI, the conclusions of the previous sections are drawn into the final proposal of obligatory, simultaneous and simple Treaty reform by referenda in all Member States. At the end, five counter-arguments to the proposal are discussed. (shrink)

This article aims to shed some light on the concepts embedded in the expressions ‘services of general interest’ (‘SGI’), ‘services of general economic interest’ (‘SGEI’), ‘non-economic services of general interest’ (‘NSGI’) and ‘social services of general interest’ (‘SSGI’). It is submitted that the expression ‘SGI’ conveys a general concept which comprises both SGEI and NSGI. SGEI may be distinguished from NSGI in that only the former involve an economic activity. In contrast to SGI, SGEI and NSGI, the expression ‘SSGI’ is (...) nowhere to be found in primary EU law. This means that it is for the EU legislator and, as the case may be, for the Member States to define such expression. Furthermore, this article supports the contention that a definition of the principles and conditions underpinning the operation of SGI must be capable of adapting to changing times and social perceptions, whilst being respectful of the vertical and horizontal allocation of powers set out in the Treaties. Vertically, a definition of SGI must not impinge upon the powers retained by the Member States. In the absence of harmonisation, it is for the Member States to define the services they consider to be of general interest, unless they commit a manifest error of assessment. In the presence of EU harmonising measures, the margin of discretion enjoyed by the Member States is, if still existent, narrowed down, given that national authorities are required to comply with the objectives pursued by the EU legislator. Horizontally, a definition of SGI must not encroach upon the prerogatives of the Commission in the realm of competition law. Moreover, in light of Article 9 TFEU and secondary EU legislation, the specific features of SSGI must be taken into consideration when determining the compatibility with EU State aid rules of public service compensation awarded to the providers of those services. An EU conceptual framework for the SGI must thus be the result of a constructive dialogue between the different levels of governance, as well as of a balanced solution among different policy areas in relation to which the EU enjoys competences. (shrink)

The article focuses on the overlooked volume of Henry Sumner Maine's corpus, the posthumously published International Law and uses it to respond to the general critical difficulty in establishing Maine's posture. Maine, of course, makes it difficult with the numerous contrapuntal moves of this book and others. For example, he strongly criticizes the predominant view of international law as an accretionary process of commentary by one theorist following another and yet he places tremendous value on Grotius, "whose works (...) acted on the spirit of belligerency like a charm," and other early international legal theorists. He sees his contemporary environment as marked by increasing militarization, even of militarization of society during time of peace, while he describes the relative humanity of the present over the distant past.Ultimately, Maine is a realist who focuses on late nineteenth-century manuals of war rather than the idealism of the Anglo-American peace movement, and recognizes the importance of Czar Alexander II over any of nineteenth-century international legal theorists. If J.W. Burrow has identified social evolution as providing Victorians an "intellectual resting-place" between theoretical clarity and social diversity, Maine's broad social evolution allows him to mediate between the moral amelioration in international life and the practical realities of that life. (shrink)

Is the dream of EU endangered? This book reviews classic and modern values and virtues, and uses them in order to rethink Europe's present politics and its future. The idea of the Republic was born with the political ethics of ancient Greece. The current international crisis obliges Europe to face the mirror of truth: What has become of the European Idea and how fares the European Constitution? It has been a long road from the Greek Politeia to the present (...) lack of values and financial monomania in Europe, who seems to have lost any harmony between the spirit, the soul and the body of her Constitution: the will and values of the people (material constitution), the text of the Lisbon Treaty (formal constitution) and its current political interpretation and action (real constitution), making Europe a two-tier or three-tier club, far from the dream of the founding fathers. Without republican values and virtues, and failing to uphold the European social model, the European Union would devolve into moral, social and democratic bankruptcy. (shrink)

While human rights treaties provide a formidable set of principles on education and values, domestic Courts often tend to adjudicate claims in terms of local arguments for or against each particular educational practice. This article explores how international human rights law could inspire the interpretation of domestic law and educational practice, without neglecting specific cultural aspects. Firstly, the article reviews the sociological debate on values in education and shows its importance for the legal discussion. Secondly, some critical contestations (...) of international cultural human rights are outlined, as well as certain arguments to justify the importance of this model. The study of international law follows: the UN, the European Court of Human Rights, and three relevant African Charters, as well as every reference to education made by the African Commission on Human and Peoples’ Rights and by the African Court is examined. Lastly, a comparative section reveals a certain cultural commonality inspired by the UN treaties, but also reflects some cultural and institutional differences between the European and the African regional systems. (shrink)