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European Papers www.europeanpapers.eu ISSN 2499-8249
Vol. 6, 2021, No 1, pp. 229-237 doi: 10.15166/2499-8249/464
(CC BY-NC-ND 4.0)
Articles
Shaping the Future of Europe – First Part
edited by Sandra Hummelbrunner, Lando Kirchmair, Benedikt Pirker, Anne-Carlijn Prickartz
and Isabel Staudinger
Shaping the Future of Europe: Introduction
Sandra Hummelbrunner*, Lando Kirchmair**, Benedikt
Pirker***, Anne-Carlijn Prickartz**** and Isabel Staudinger*****
TABLE OF CONTENTS: I. Introduction. – II. Shout out to wonderful commentators & peer reviewers. – III. Over-
view of the contributions. – III.1. Novel institutional approaches. – III.2. Novel (de-)centralised enforcement.
–III.3. Future implications of fundamental rights protection. – III.4. New “solutions” to contemporary chal-
lenges. – III.5. The EU’s external action, future EU defence policy and the challenges of the 21st Century. –
IV. Conclusion.
ABSTRACT: The present Introduction sets out the context of the following Articles to the anthology
"Shaping the Future of Europe" to be published in two issues of European Papers. It briefly presents
the people who made the anthology possible, in particular the speakers, commentators and other
participants at the 2020 Salzburg Young European Law Scholars (YELS) conference and the peer re-
viewers. Subsequently, it lists the contributions of the anthology which all discuss essential topics
related to the future of Europe and tackle a diverse array of issues in EU law, from institutional issues
* Consultant, Division of European Law of the Austrian Federal Ministry for European and International
Affairs, sandra.hummelbrunner@gmx.at.
** Deputy Professor for National and International Public Law with a Focus on the Protection of Cul-
tural Heritage, Department of Social Sciences and Public Affairs, Bundeswehr University Munich,
lando.kirchmair@unibw.de.
*** Senior Lecturer, Chair for European, International and Public Law, University of Fribourg (Switzer-
land), benedikt.pirker@unifr.ch.
**** Senior Scientist, Department of Public, International and European Law and at the Salzburg Centre
of European Union Studies at the University of Salzburg, anne-carlijn.prickartz@sbg.ac.at.
***** University Assistant (Postdoc), Department of Public, International and European Law, University
of Salzburg, isabel.staudinger@sbg.ac.at. The conveners of the conference and editors of this anthology
would like to express their gratitude to the student assistants from the University of Salzburg who provided
(logistical) assistance during the hosting of the conference in Salzburg: Mag.iur. Georgine Berger, Mag.iur.
Sarah Margareta Deisl and Mag.iur. Julian Kessler, LLB.oec and to the student assistants at the University
of Fribourg who provided editorial assistance with the preparations of this anthology: Sabine Cotting,
Michelle Kunz and Janice Sumbo.
230 Sandra Hummelbrunner, Lando Kirchmair, Benedikt Pirker, Anne-Carlijn Prickartz and Isabel Staudinger
such as lobbying via novel approaches and complementary currencies to fundamental rights chal-
lenges like terrorist content online and to external action issues such as a future European army.
KEYWORDS: EU institutions – EU law enforcement – fundamental rights protection – EU external action
– defence union – hybrid threats.
I. Introduction
Once again, Europe is at a crossroads: Although there is regular talk of crisis, trust in the
European Union (EU) remains surprisingly stable.1 Nonetheless, Europe faces many in-
ternal and external challenges, such as Euroscepticism, the return of nationalism, societal
and technological developments, climate change, terrorism, and an ever-changing global
political, economic and societal landscape, which may be in need of structural modifica-
tions. Most recently, the coronavirus pandemic has been added to this non-exhaustive
list of challenges. While novel common European solutions might be prone to teething
problems, they might entail solutions which can be allied to other areas of EU law. It is
precisely against this backdrop that we pose this question: What could and should be
done to put Europe and the EU in the position to properly address its challenges and,
more generally, how should we shape the future of Europe?
To answer this question of utmost importance, we invited young scholars to propose
ideas and to discuss their views on how to shape the future of Europe. In particular, we
asked them to provide a forward-looking conceptual analysis on how to properly address
Europe’s internal and external challenges and to present bold and visionary approaches.
Instead of proposals that focused on current shortcomings, we encouraged submissions
that propose new, hands-on approaches to tackling Europe’s challenges in an innovative
and future-oriented way, or pieces that revisit existing but promising approaches that
were never put into practice.
Our call was specifically addressed to Young European Law Scholars, i.e., scholars
who had not yet secured a full professorship, but also young scholars from related disci-
plines such as political science, sociology, economics, and philosophy. The idea was to
not only provide a platform for such young scholars to present and discuss their research
with their peers, but also to enter into an exchange with already established scholars,
who we invited to act as commentators at the conference.
Happily, our call met with an enthusiastic response by many young scholars, which
put us in the rather fortunate albeit tough position of having to choose the eleven pro-
posals we deemed most promising in light of the conference theme. The eleven young
emerging scholars behind them were invited to join the debate on how to shape the fu-
ture of Europe at the “3. Tagung junger Europarechtler*innen – 3rd Young European Law
Scholars Conference”, which took place at the University of Salzburg on Thursday 27th
1 At least the Standard-Eurobarometer 90 published in March 2019 before the corona crisis had shown
a record high: data.europa.eu.
Shaping the Future of Europe: Introduction 231
and Friday 28th of February 2020. The conference, which was very well attended despite
the waging Corona crisis, was opened with welcome addresses by the Rector of the Uni-
versity of Salzburg, Hendrik Lehnert and by the Dean of the Law Faculty, Michael Rainer.
Advocate General of the Court of Justice of the European Union Eleanor Sharpston deliv-
ered an inspiring keynote on “The European Project – Past, Present and Future”. In this
anthology, which will appear in two separate issues of European Papers, ten of the
presentations from the 3rd YELS Conference are collected.
II. Shout out to wonderful commentators & peer reviewers
A major goal of YELS is to bring together young and established scholars of European law
or from related disciplines. Ideally, this combines fresh ideas from younger scholars with
the experience and knowledge from established scholars. We, and surely also all authors
of this anthology, are enormously grateful to Catherine Barnard (University of Cambridge),
Enzo Cannizzaro (Sapienza Università di Roma), András Jakab (University of Salzburg), Dan-
iel Kaufmann (University of Neuchâtel), Daniel-Erasmus Khan (Bundeswehr University Mu-
nich), Dimitry Kochenov (Central European University), Panos Koutrakos (City University of
London), Markus Kotzur (University of Hamburg), Kirsten Schmalenbach (University of Salz-
burg), Ingeborg Zerbes (University of Vienna) and Sonja Puntscher Riekmann (University of
Salzburg) for having agreed to come to Salzburg in order to contribute to a wonderful and
informed debate on how to shape the future of Europe. The informed comments from
these distinguished scholars, together with an additional round of blind peer review,
strengthened what we consider to be wonderful sparks to an important debate. We would
therefore also like to extend our warmest gratitude to the scholars who have supported
the present anthology in the role of peer reviewers.
III. Overview of the contributions
iii.1. Novel institutional approaches
Institutions matter. This well-known assumption has driven a myriad of researchers from
various disciplines, including political scientists, economists and, not least, legal scholars,
to investigate whether and how institutions matter. The idea behind this assumption is
that how institutions are organised and regulated, what their powers and functions are
and how they interact with each other affects (or should affect), inter alia, their decision-
and policy-making, their (democratic) legitimacy, their effectivity, productivity and con-
sistency as well as the public perception about and the trust in them. What is more, the
assumption that institutions matter has actually informed institutional choices in reality.
This particularly applies to the EU and, earlier, the European Communities. The Member
States, as ‘masters of the Treaties’, have a track record of modifying the institutional set-
up of these European organisations in order to achieve certain aims, such as making
232 Sandra Hummelbrunner, Lando Kirchmair, Benedikt Pirker, Anne-Carlijn Prickartz and Isabel Staudinger
them or their institutions more democratically legitimate or their decisions and policies
more effective and consistent. A perfect example to this effect is the Treaty of Lisbon,
which, for instance, provided the European Parliament with a greater say in the adoption
of legal acts and introduced the High Representative of the Union for Foreign Affairs and
Security Policy as an institutional link between the Commission and the Council in order
to make EU external action more consistent.
Both the contributions of Odile Ammann (University of Zürich) and of Maria Patrin
(European University Institute) are implicitly based on the assumption that institutions
matter, in that that they both inquire how an EU institution, namely the European Parlia-
ment and the European Commission respectively, should be regulated or modified with
a view to attaining a certain objective.
Odile Ammann, in her Article “Transparency at the Expense of Equality and Integrity?
Present and Future Directions of Lobby Regulation in the European Parliament”, ad-
dresses the problem of weak regulation of lobbying activities vis-à-vis the European Par-
liament and how this erodes trust in this democratic institution and the law-making pro-
cesses in the EU more generally. She shows that domestic lobbies have increasingly been
targeting the European supranational realm, including the European Parliament, which
has become a key lobbying target due to its strengthened position in the EU law-making
process. She argues that lobbying in the European Parliament should therefore be fur-
ther regulated and outlines what should be observed when adopting stricter lobbying
regulations. In particular, she points out that today’s lobbying regulation neglects issues
that transcend transparency, such as equality and integrity, and that it thus defies its
ultimate purpose, namely enhancing public trust.
In “The European Commission between institutional unity and functional diversifica-
tion. The case of economic governance”, Maria Patrin analyses the Commission’s diverse
functions and addresses the significance of the diversification of the Commission’s func-
tions in terms of the Commission’s institutional functioning. She argues that despite being
a collegial institution, the internal decision-making process of the Commission is frag-
mented and heterogeneous rather than unitary. On the basis of an assessment of the pow-
ers and functions newly acquired by the Commission in economic governance, she unveils
a paradox inherent in the Commission’s multi-functionality. While, due to its independent
and impartial status, the Commission is often entrusted with tasks of a political nature, it is
not endowed with the legitimacy basis that would support its action in these fields. Ulti-
mately, Maria Patrin argues that more clarity should be provided regarding the functions
of the Commission, that is its political and enforcement functions, as they rely on different
types of legitimacy, i.e. democratic accountability, on the one hand, and independence and
neutrality of judgment, on the other.
Shaping the Future of Europe: Introduction 233
iii.2. Novel (de-)centralised enforcement
Like in every legal order, improving the administrative and/or judicial enforcement of ap-
plicable legal rules also looms large in the EU. The Commission’s proposals as well as the
academic discourse on public enforcement of EU law somewhat oscillate between in-
creased and reinforced centralised enforcement on the EU level and more decentralised
enforcement by the Member States’ authorities – depending on the substantive legal
framework. In essence, three ways of administrative enforcement are thinkable: i) cen-
tralised enforcement by an EU authority or agency, ii) enforcement by Member State au-
thorities, or (iii) enforcement by a combination of both i) and ii).
In her Article “The EU Response to Terrorist Content Online: Too Little, (Maybe not)
Too Late?”, Viviana Sachetti examines the EU’s efforts in strengthening the European Pub-
lic Prosecutor’s Office (EPPO). The Article provides an extensive overview of the existing
substantive framework of countering the dissemination of terrorist content online in or-
der to analyse the Commission’s latest Proposal for a Regulation of the European Parlia-
ment and of the Council on preventing the dissemination of terrorist content online
(COM(2018) 640 final). After a critical analysis of the proposal, she puts the Commission’s
effort in the larger context of Eurojust and Europol as “crucial cybersecurity and human
rights guardians”. In her opinion, the extension of the EPPO’s competences would not
impinge on Eurojust and Europol’s powers but “could lead to their role as specialised
within matters pertaining to cybersecurity and the prevention and suppression of online
terrorist conducts”.
In her Article “The ECN+ Directive: An Example of Decentralised Cooperation to Enforce
Competition Law”, Corinna Potocnik-Manzouri deals with the other side of the same coin:
decentralised enforcement of the EU’s competition policy in the new European Competition
Network (ECN+) Directive (EU) 2019/1. The national competition authorities (NCAs) now
form a network of enforcement authorities with the European Commission. She explains
the road to the ECN+ Directive by examining the success and shortcomings of the preceding
Regulation 1/2003 and the respective actions taken. Then the ECN+ Directive is thoroughly
scrutinised, presenting the novel feature of decentralised enforcement also for the rather
unexperienced reader of competition law contributions. Having done that, the Article does
not shy away from asking and answering the important question as to whether decentral-
ised cooperation can contribute to an ever closer Union. In order to answer that question,
she focuses on (I) the ECN+ eligibility to be characterised as a well-functioning system, (II)
the aspect whether decentralised enforcement could contribute to an ever closer Union
and (III) the ECN+ as a potential role model for other areas.
iii.3. Future implications of fundamental rights protection
Many events and publications recently celebrated the ten-year anniversary of the entry into
force of the Charter of Fundamental Rights of the EU as a fully binding part of EU primary
234 Sandra Hummelbrunner, Lando Kirchmair, Benedikt Pirker, Anne-Carlijn Prickartz and Isabel Staudinger
law. Ever since, it has often been the Court of Justice that has been at the centre of attention
for those studying fundamental rights and human rights in an EU law context. Is the Court
doing the right thing? Is it being active enough or already “activist”, however one is to define
this term? But fundamental rights law and policy also encompasses the other institutions
of the EU and the Member States. The Articles in this panel therefore correctly focus not
only on future challenges in the area of jurisprudence, but also on potential future legisla-
tive developments of EU fundamental rights law in order to shape the future of Europe.
Matteo Manfredi, in his Article “Enhancing economic and social rights within the in-
ternal market through recognition of the horizontal effects of the European Charter of
Fundamental Rights” focuses on the social (justice) dimension of the EU and the European
integration process. Examining the horizontal effects of the Charter and the (non-)recog-
nition thereof, he identifies promises for promoting economic and social rights within the
internal market, as well as limits and caveats, both in the European Court of Justice’s ju-
risprudence and on the political (Member State) level. Pointing out the prudency of the
Court’s jurisprudence, he nonetheless calls for a more coherent solution and interpreta-
tion of the Charter’s horizontal effects, necessary to avoid legal uncertainty and to ensure
uniform protection of fundamental rights in the Member States. He concludes that, alt-
hough first steps have been taken in recognizing the horizontal effects of economic and
social rights in the Charter, there is still a need for further (coherent) case law and, where
applicable, additional secondary legislation.
In his Article “Shaping the Future of Europe in Prisons: Challenges and Opportunities”,
Christos Papachristopoulos addresses the problem of the wide disparities in prison con-
ditions across the EU Member States which result in violations of fundamental rights. Not
only does this state of affairs constitute a problem for a supposed community of values
like the Union, but it also puts the functioning of the Area of Freedom, Security and Justice
at risk, as it undermines the functioning of the Area’s foundational principle of mutual
trust. Based on literature on the topic of compliance, Papachristopoulos therefore devel-
ops a sophisticated typology of possible strategies of intervention of the EU in national
prison systems to highlight their potential and shortcomings.
iii.4. New “solutions” to contemporary challenges
Stating that the EU is currently facing many challenges, some as a direct result of con-
temporary developments and some as a necessary result of its institutional structure and
general character, is an often-repeated truism. In current times, one can think of contem-
porary challenges such as those presented by Covid-19, tech conglomerates and (online)
disinformation campaigns, and the continued plight of people seeking refuge from war,
hunger and climate change. It is, of course, important that those challenges are acknowl-
edged, and it is also important to try and change one’s point of view and shift the focus
towards possible solutions. Whereas, for example, the Common Market is a fundamental
historical building block of the current EU, the Economic and Monetary Union is a more
Shaping the Future of Europe: Introduction 235
recent example of European (economic) integration and the EU’s (and its Member States’)
ambitions in this area. It is also a policy area that is still “under construction” and clearly
remains in need of further reforms and faces political, legal and economic challenges.
Similarly, and perhaps more urgently in light of the current challenges (Covid-19, climate
change, political instability, among other problems) facing not just the EU Member States
but almost all countries worldwide, the EU still lacks a comprehensive approach towards
refugees, leaving many of them stranded in subpar conditions and without future pro-
spects. In this section, therefore, the focus lies on new approaches towards two contem-
porary challenges that loom large: challenges within the Economic and Monetary Union
and the EU’s response to the refugee crisis.
Christian Gelleri, in his Article ‘Reshaping the Future of Europe with Complementary
Currencies?’, considers a possible role for complementary currencies within the Eco-
nomic and Monetary Union and the Eurozone, with a particular focus on their potential
in harmonizing regional inequalities and strengthening the democratic legitimacy of (lo-
cal) currencies. To this end, he discusses existing examples of complementary currencies,
particularly the Chiemgauer currency in Bavaria, in light of the current legal and economic
framework within the EU generally and the Eurozone in particular. The main focus of the
Article lies on the stronger connection between individuals/regions and currencies that
complementary currencies can provide and, as a result, the increase in democratic legit-
imacy of such a currency. By allowing for the direct involvement of people and decision-
makers, regional alternative currencies more closely align with local needs and objectives
and provide for a more democratic way of creating and using money, so Gelleri argues.
In her Article “Shaping the future towards a solidary refugee resettlement in the EU”,
Janine Prantl discusses the state of refugee resettlement within the EU and considers its
challenges and possible reform. One of the main challenges she identifies in this regard is
the creation of a common EU resettlement framework based on solidarity and responsibil-
ity sharing – a framework that has yet to materialize in spite of a pressing need and pledges
made thereto – to replace the current system of voluntary commitment. She points out the
difficulties related to deriving positive obligations from the principle of solidarity, both in EU
law and in international law and analyses the issues relating to the EU’s competences in the
field of refugee policy, arguing that although a common EU processing of refugee resettle-
ment requests would be beyond the EU’s competences, the EU and its agencies can coor-
dinate and support common procedures conducted by the Member States. She laments
not only that a common framework has failed to materialize, but also the resistance by
several Member States to comply with legally binding relocation obligations. One possible
solution, she posits, would be the creation of a centralized general assessment of the qual-
ification for resettlement, leaving room for the consideration of a refugee’s individual con-
ditions and for national concerns at the Member State level.
236 Sandra Hummelbrunner, Lando Kirchmair, Benedikt Pirker, Anne-Carlijn Prickartz and Isabel Staudinger
iii.5. The EU’s external action, future EU defence policy and the challenges
of the 21st century
The EU has managed to establish itself as a genuine global actor on the international
scene. Yet, global problems such as climate change and transnational crime and terror-
ism have yet to be addressed adequately, not least by the EU. How should the EU position
itself in the ever-changing international landscape? Should the EU, when tackling external
challenges such as climate change and migration, hold fast to multilateralism, or should
it act unilaterally? What could such unilateral action look like? Is it possible to tackle Eu-
rope’s external challenges without bending/abandoning the EU’s values?
Recently, Jürgen Habermas, one of the most renowned European intellectuals, pub-
licly appealed for a European Army. Does the appeal for a European Army point to an-
other truly European constitutional moment? Does the EU need a European Army, or
should it focus on its soft power? How could/should a European Army look? Could there
be repercussions regarding the EU’s most important foundational idea: peace? Could the
Europeanization of Member State armies be a promising alternative or complement to a
European Army? What are adequate short-term developments of the Common Security
and Defence Policy? How should cybersecurity and artificial intelligence be dealt with un-
der the Common Security and Defence Policy?
These are numerous questions which are far from easy to answer. Josef Weinzierl
and Luigi Lonardo, however, provide insightful, careful and nevertheless forward-looking
and fresh answers to these questions. In his Article, Josef Weinzierl provides “A dem-
oicratic perspective on a future European Army”, when posing the question “An Army of
peoples?”. His analysis is informed by political theory. As the core of his Article, he embeds
the potential future shape of a European Army with questions of constitutional identity
of the European polity, which, in his view, is best characterised as a demoicracy. He is
optimistic in the sense that there is “conceptual space for autonomous armed forces be-
yond the nation-state”. By making concrete proposals on what the institutional design of
a European Army could look like in practice, his Article adds value to a debate that has
mostly concentrated on a discussion about the pros and contras of such an initiative.
Importantly, he notes that whatever plans for a future European Army might look like,
they must fit the overall political nature of the EU.
Luigi Lonardo delivers “a first assessment” of “EU Law Against Hybrid Threats”. In so
doing, he elaborates on a topic which recently took centre stage in EU defence policy. Hy-
brid threats, constituted by diplomatic, military, economic and technological tactics, are
high on the security agenda. Even though the responsibility to address such threats re-
mains mainly with the Member States, it is the Article’s merit that it provides a highly topical
analysis of the first steps in EU law to address the challenge of hybrid threats. He argues
that despite the diverse nature of hybrid threats, there is a supranational dimension to
them and art. 114 TFEU could make for an adequate EU competence in this regard.
Shaping the Future of Europe: Introduction 237
IV. Conclusion
Even though the European project faces many and quite difficult challenges, that does
not mean that the future that lies ahead of Europe is necessarily bleak. On the contrary,
we hope that Europe is able to rise to these challenges and to take the necessary steps
to tackle them, by finding ways to act in a united, forward-looking and decisive manner.
By inviting young scholars to share their ideas on how to shape the future of Europe, we
aimed to contribute to this quest and think that this anthology may indeed serve as an
inspiration in that regard. Moreover, we hope that the idea of YELS, a non-institutional-
ized, Europe-wide annual gathering of young and established EU law scholars proves to
be a fruitful scholarly event as regards the conferences, which took place already, and
hopefully for the many which are scheduled to come. It is a particularly encouraging sign
for us that more or less at the time of publication, the next YELS Conference entitled “Back
to Beginnings: Revisiting the Preambles of European Treaties” is taking place on 20th and
21st May 2021 at the University of Zürich2.
2 This Article takes into account developments as of beginning of May 2021.