No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
Reconciling Secondary Legislation and the Treaty Rights of Free Movement
Abstract
Since the rights of free movement have been given both a broader and more precise scope through the case law of the Court of Justice of the European Union, it seems inevitable that secondary legislation will contain elements which may infringe them. There is already extensive case law dealing with such conflicts, and this article examines the two main avenues pursued by the Court to reconcile secondary legislation and the rights of free movement: the duty to interpret secondary law so that it is consistent with the free movement rights, and the review of the validity of secondary legislation based on an assessment of infringement of the free movement rights. It is established that, although the Court uses both these avenues, it appears to have a preference for using the former There are, however indications that in future the Court will be ready to make a more intensive review of the validity of secondary legislation. It also appears that the Court often uses a third avenue, that of applying the free movement rights as a supplement to secondary legislation.
... A related disagreement concerns the respective authority of the EU legislator and the EU judiciary to lead on the authorship of EU citizenship law. Here, the terms of Articles 20 and 21 TFEUwhich explicitly authorize the EU legislator to attach conditions and limits to the exercise of citizenship rights 8call into question the legitimacy of case law in which the progression of citizenship rights overrides legislative constraints (Dougan, 2013;Hailbronner, 2005;Sorensen, 2011). That analysis engages with questions about institutional balance and the democratic credentials of the different institutional actors, especially at EU but also at national level (Davies, 2016a). ...
Case law restricting free movement rights is criticized for privileging the internal market over social rights, achieved through reductive ‘binary’ reasoning that focuses too narrowly on the ‘free movement versus social rights’ dimension of the conflict. The problem is typically discussed for the economic freedoms but is evident elsewhere in free movement law too. This point is demonstrated through the example of EU citizenship and social assistance, which establishes that protecting national public finances justifies free movement restrictions when citizens are not seen as market participants. For better integration of economic, social and constitutional objectives, judicial assessments have progressed in some respects beyond the binary conflict method, evidencing the beginnings of the more complex accommodation of multiple dimensions that a system of multilevel constitutionalism requires. However, these advances have not yet produced significantly different outcomes in practice. The legacy of binary conflict reasoning proves stubbornly resilient to change.
In an era of increased reliance on private regulatory bodies and globalised economic activity, standardisation is the field where politics, technical expertise and strategic behaviour meet and interact. International standard-setting bodies exemplify the rise of transnational governance and the challenges that it brings about relating to institutional choice, legitimacy, procedural and substantive fairness or transparency. This book takes a more empirical-based approach focusing on the mechanics of international standard-setting. It constitutes a multidisciplinary inquiry into the foundations of international standard-setting, an empirically under-researched yet important area of international informal lawmaking. Contributors expertly examine the peculiarities of international standardisation in selected issue-areas and legal orders and shed light on the attributes of international standard-setters, allowing comparisons among standard-setting bodies with a view to identifying best practices and improve our understanding about standardisation processes.
In Chap. 3 the author turns to the question whether the EU and Member States may adopt FDI screening mechanisms that are broader than those circling around the notions of security and public order. To this end, he first assesses who in the EU has the competence to screen FDI on broader grounds than ‘security or public order’—the EU or its Member States. The author then examines the EU’s and Member States’ obligations to admit FDI to the internal market pursuant to EU primary law and International economic law. This includes an analysis of the EU’s and Member States’ obligations to admit FDI to their markets and, to the extent such obligation exists, of relevant grounds of exception to these obligations. More concretely, Chap. 3 discusses questions such as the delimitation of the freedom of capital movement and the freedom of establishment as well as a paramount ground of exception to both freedoms: the scope of Art 64(2) and (3) of the Treaty on the Functioning of the EU. It further gives an overview of EU obligations pursuant to International economic law, including a brief analysis of the EU-China Comprehensive Agreement on Investment, and then proceeds to submit an in-depth analysis of the WTO’s General Agreement on Trade in Services with regards to the EU’s flexibility to adopt FDI screening mechanisms. On this basis, Chap. 3 identifies policy options for FDI Screening mechanisms on broader grounds than ‘security or public order’. Their scopes differ according to the personal and substantial scope the FDI Screening mechanism may have. The author reaches the conclusion that these mechanisms must all compromise in one way or another on the extent to which EU and Member States concerns vis-à-vis foreign investors are met.
This article reviews the legal and political science literatures on the extensive interpretation of the European fundamental freedoms and on possible ways out. The common market rules were originally laid down in an international treaty, the Treaty of Rome. In functional terms, this treaty became a de facto constitution, implying that its content, including the fundamental freedoms, were constitutionalised. We review how this constitutionalisation constrains legislators at the Member State and European levels. In order to identify possible ways out, we also review several reform options: institutional reforms of the European judicial system; the de-constitutionalisation of the fundamental freedoms; counterbalancing these freedoms with further strengthened social rights; and contestation of over-constitutionalisation within the given primary law framework. We conclude that reform options are available that could gradually free the legislators from the over-constitutionalisation of the common market rules. Such options should become part of the ‘Conference on the Future of Europe’ process and debates about EU reforms in general, as more flexibility is warranted in a heterogeneous EU.
The European Union is unique among jurisdictions in having constitutionalized its policy goals and methods, by embedding these in the Treaties. As a result, the legislature is far more constrained in its activities than is the case in other constitutional orders. Yet the Treaties are indeterminate, and it is the Court of Justice which interprets and delimits them, and instructs the legislature on how and to what extent it may pursue them. There is, in substance, a principal–agent relationship between the Court and the EU legislature, enforceable by the Court's capacity to annul legislation contrary to its preferences. An examination of internal market legislation shows that indeed it consists of codification of prior case law. The judicial constraints on the EU legislature are sufficiently tight that the legislature is more akin to a subordinate implementing regulator than to an autonomous political policy-maker. © 2016 The Author(s) JCMS: Journal of Common Market Studies
The aim of this edited collection is to explore, from a public law perspective, the dynamic relationship between the Court of Justice of the European Union (CJEU) and the EU legislature across a range of policy areas linked to the completion of the EU internal market. The themes discussed here have not been systematically explored in relation to the EU, though there is a wealth of material from the US and other national constitutional orders from which comparisons may fruitfully be drawn. To begin with, I set out, in straightforward terms, the task facing the judiciary and the legislature in the EU internal market context, and go on to outline two extreme visions, which serve to illustrate two radically different ways in which the relationship between the judiciary and the legislature may be conceptualised. Readers are invited to consider the appeal of each vision, first in relation to the tasks facing courts and political institutions operating within any constitutional frame; and second in relation to the specific EU internal market context. Thus, later sections of this introduction identify principles from which theories on the relationship between the judiciary and the legislature may be constructed. They also discuss the specifics of the EU constitutional context. In particular, attention is devoted to the salient features of the EU Treaties and the position of the judiciary and the legislature in the EU legal order. In a final section, the substantive chapters of the volume are introduced, with an explanation as to how each contributes to a better understanding of the relationship between the legislature and the judiciary.
"'EU law, shaped both judicially and at the legislative level, disrupts national labour law - perhaps for good reasons, perhaps for bad reasons, sometimes for reasons which are elusive. Challenges of an intellectual and practical nature confront those trying to pick a path through material accumulated over several decades - and intrigue those thinking about the future of the European Social Model. This book offers an insightful, thoughtful and inspiring account of the nature(s) and purpose(s) of EU labour law and is a hugely welcome addition to the literature.' - Stephen Weatherill, Somerville College, Oxford University, UK".
EU law as it stands fails to provide same-sex couples legal certainty as regards their right of free movement under the EU Treaties. This chapter analyses in detail the situation in which a Member State refuses entry and residence to the same-sex spouse or (registered) partner of an EU citizen invoking free movement rights. Although the EU does not have the competence to harmonise Member States' family laws, the primacy and full effectiveness of EU law require these laws to respect both the fundamental right to free movement of persons, as well as fundamental rights. This chapter argues that it is for the CJEU, as the EU's Supreme Court and constitutional adjudicator, to guarantee these freedoms. An approach based on mutual recognition of the relationship status of Member States would allow for an inclusive definition of family, whilst respecting the division of competences between the EU and its Member States.
By tracing the way in which the CJEU and national courts react to legislation and Treaty reform, and the way in which the Member States, Commission and other actors in the legislative process react to judicial interventions, this collection of essays explores the nature of the dynamic relationship between courts and legislatures within the EU. It is clear that the boundaries between the legal and political realms are contested and that the judiciary and the legislature are engaged in a struggle, not so much about the substantive contours of the internal market project, but rather about their relative institutional positions. The contributors consider all aspects of the internal market project, from goods to capital and citizenship, examining areas where there has been significant Treaty change as well as those in which the Treaty framework has remained substantially unaltered.
The presentation and causes of adult meningitis in South Africa have changed substantially as a result of HIV. Knowledge of aetiology and laboratory findings in patients presenting with meningitis are important in guiding management. We performed a retrospective study to determine these findings in a setting of high HIV and TB prevalence in Cape Town.
Patients undergoing lumbar punctures between 1st January 2006 and 31st December 2008 at a public sector referral hospital were studied. Cases were classified by microbiological diagnosis, or in the absence of definitive microbiology as 1) normal CSF (neutrophils < or = 1 x 10(6)/L, lymphocytes < or = 5 x 10(6)/L, protein < or = 0.5 g/dL, glucose > or =1.5 mmol/L), 2) minor abnormalities (neutrophils 2-5, lymphocytes 6-20, protein 0.51-1.0, glucose 1.0-1.49) or 3) markedly abnormal (neutrophils>5, lymphocytes>20, protein>1.0, glucose<1.0).
5578 LPs were performed on 4549 patients, representing 4961 clinical episodes. Of these, 2293 had normal CSF and 931 had minor abnormalities and no aetiology identified. Of the remaining 1737, microbiological diagnoses were obtained in 820 (47%). Cryptococcus accounted for 63% (514) of microbiological diagnoses, TB for 28% (227), bacterial meningitis for 8% (68). Of the remaining 917 who had marked abnormalities, the majority (59%) had a sterile lymphocytic CSF. Of note 16% (81) patients with confirmed Cryptococcus, 5% (12) with TB and 4% (3) with bacterial meningitis had normal CSF cell-counts and biochemistry.
Cryptococcal and tuberculous meningitis are now the commonest causes of adult meningitis in this setting. TB meningitis is probably underdiagnosed by laboratory investigation, as evidence by the large numbers presenting with sterile lymphocytic markedly abnormal CSFs.
Abstract A remarkable feature of the Union's legal order is the absence of a genuine hierarchy of legal acts—a pre-established ranking of different types of legal acts in accordance with the democratic legitimacy of their respective authors and adoption procedures, which is used as a means to resolve conflicts among these different types of legal acts. There is however a clear suggestion of such hierarchy in the sequence in which the newly created legal instruments are listed in Article I-33(1) and in the organisation of the subsequent Articles I-34 to I-37 of the European Constitution. In this contribution, the (lost) logic behind the Union's current set of legal instruments is analysed, followed by an examination of the reform of the system of legal instruments carried out in the European Constitution. Lastly, an attempt is made to answer the question as to whether this reform amounts to the establishment of a genuine hierarchy of legal acts in the Union.
This article reviews ECJ case law on the conceptualization and legal circumscription of the doctrine of consistent interpretation, reflecting its fundamental importance as a mode of giving effect to Community law before national authorities. Legal uncertainty, an inherent characteristic of the technique, should be reduced, it is argued, by improving the reasoning of the ECJ's judgments. In particular, a highly critical discussion of the Arcaro judgment concludes that its precedent value is very limited. A parallelism in approach to both consistent interpretation and direct effect is suggested. Partly, this has already been achieved insofar as the issue of expiry of the transposition period of directives is concerned. In addition, the article suggests a reform of the case law on consistent interpretation in actions by the State versus individuals and offers explanations for the seemingly inconsistent nature of the cases producing a horizontal impact of directives despite the lack of horizontal direct effect properly so‐called (incidental effects). In considering whether the doctrine gives rise to unacceptable legal uncertainty, a comparison with the interpretive obligation under the UK Human Rights Act 1998 is made, which produces similar results.