The concept of the international rule of law has developed in a form distinct from, but related to, the rule of law at the domestic (or European) level. This article examines the notion of the international rule of law and then, after explaining the international system of investment protection and its dispute settlement system, sets these against the international rule of law. It concludes by looking

Recent and upcoming judgments of the Court of Justice of the European Union (CJEU) have resurfaced a much-debated topic on the legal limitations of law enforcement authorities and intelligence services under EU law in implementing surveillance operations. In its decisions, the CJEU has reinstated and at times remoulded its case-law on data retention, unearthing a variety of legal issues. This article

The Single Supervisory Mechanism (SSM) and Single Resolution Mechanism (SRM) form the Banking Union, which comprises EU authorities (ECB and SRB) and national authorities (NCAs and NRAs) with vast powers. Although crucial for its legitimacy, the Banking Union’s accountability is flawed, and not for the (stereo)typical reasons: accountability is a visible concept in SSM and SRM regulations, and political

EU Treaties contain an arsenal of purpose-defined and ambiguous competences that are enjoyed by EU institutions, yet devote little attention to the restraining impact of EU competences on Member States' autonomy and policies. While the focus has traditionally been on subsidiarity to deal with competence issues, the judgment of the Bundesverfassungsgericht in Weiss revitalises the discussion on the

The optimisation of sales practices in consumer markets through machine learning not only harbours the potential to better match consumer preferences with products, but also risks to facilitate the exploitation of consumer weaknesses discovered via data analysis. More specifically, recent technological advances have brought us to the edge of mind-reading technologies, which automatically analyse mental

No abstract is available for this article.

The Green Deal (GD) and the Conference on the Future of Europe (CoFoE) are both central to the EU's environmental, economic and social sustainability, even as many questions persist regarding their processes and outcomes. This article considers both processes as essential catalysts for, and tools of, a more polycentric Europe. It specifically wants to harness the problem-definition and problem-solving

The EU's Common Foreign, Security and Defence Policy found its way into the Treaty 30 years ago, but it is still confronted with ‘specific rules and procedures’ that seem to stand in the way of its effectiveness. Against the background of the Conference on the Future of Europe, this contribution aims to identify ways to improve the CFSP's functionality, on the basis of both existing scholarly work

This paper argues that the EU legislative process should be used for taking all decisions at European level that matter, banning the various backroads of European decision-making (competence creep) that are currently legal but not legitimate. This is a silver bullet, resolving at once a range of seemingly disparate but intimately connected legitimacy problems across all areas of EU activity, that ultimately

Criticism of the EU’s social deficit has become more vivid than ever following the socially regressive handling of the 2008–10 financial and debt crisis. In 2010, Fritz Scharpf famously argued that the EU ‘cannot be a social market economy’ owing to its institutional architecture, legal features, and collective action issues. The COVID-19 pandemic has nevertheless led to a new agenda combining investment

This article situates the Conference on the Future of Europe within past attempts at reforming the Union by unpacking its democratic raison d'être and its experimental participatory architecture. After rehearsing the standard account of its genesis, the article frames the Conference as an attempt at creating a new, yet temporary, transnational opportunity structure for participatory deliberation capable

National parliaments have long been neglected in the European integration process, although the Lisbon Treaty significantly improved their status. Nonetheless, this article argues that there is still some margin for improvement. This article explains why this situation must be urgently remedied and proposes some pragmatic solutions to this end. It is argued that national parliaments should receive

Should EU values be pursued by means of EU trade policy or separately via other policies? Article 21/3 TEU instructs the Council and the Commission to ‘ensure consistency between the different areas of its external action’, often (mis?)interpreted as a merger of all external policies with respect to values. Is this “merger” justified by the EU public interest? Linkage advocates are interested in the

Despite the constant ‘parliamentarisation’ of the European Union, the supranational dimension of European elections remains limited. Forty years after its first elections, the European Parliament (EP) still suffers from two main problems: (i) its democratic representativeness is impaired by the diversity of national electoral rules and by the predominantly national dimension of electoral campaigns;

Migration and asylum elicit intense debate in the EU. The Commission's New Pact for Migration and Asylum 2020 sought to diffuse some of the divisive issues among Member States by proposing a series of measures, mainly directed at diminishing asylum arrivals. In this article I argue that there is a profound incoherence at the centre of this policy, which is its embrace of the nineteenth-century theoretical

This article seeks to contribute to The Conference on the Future of Europe by arguing that its debates on substantive policies and democratic foundations cannot be detached from consideration being given to the configuration of the Union's normative spaces in which those policies will be developed and implemented. In its current stage of development, we can find in the Union legal system two competing

It is often argued that the European Union needs legitimation by its Member State democracies. However, there is also a reverse dependence in which Member State democracies need some kind of European Union if they are to manage externalities between themselves in ways that are needed to deliver their most fundamental obligations to their own publics to secure rights, justice, freedom from arbitrary

The rule of law is a check on power, requiring equal subjection of everyone to the law, irrespective of wealth or status. Power is not the exclusive preserve of the state, however, especially where rivalled by private entities that rise, in effect, above the law. Today’s tech giants throw the rule of law out of kilter by assuming the trappings of the state— one even has its own “supreme court”— while

No abstract is available for this article.

The article holistically discusses the alleged new EU return system which the Pact on Migration and Asylum heralds. Absent any impact assessment accompanying the key draft legislative measures and any implementation report regarding the existing legislative instruments following the 2015 refugee-protection crisis, it provides both a substantial and a formal assessment of the proposed reform. A substantial

The article examines the Conference on the Future of Europe, discussing the process set in motion by the Joint Declaration adopted by the EU institutions in March 2021, and reflecting on its prospects. Drawing from precedents such as the Conference of Messina and the Convention on the Future of Europe, the article shows that the Conference on the Future of Europe is an out-of-the-box initiative originally

How do we best defend the rule of law against its attackers, both within the European Union and outside of it? Often, the rule of law has been perceived as a domain belonging to jurists, lawyers, bureaucrats, or politicians. Yet at its most fundamental, the rule of law needs to be thought of from a citizen's perspective. When enforced, it guarantees freedoms and liberties for citizens and enables us

Over the past three decades, cyberspace has gradually become an engine of unsustainable outcomes from an economic, social and environmental perspective. The European Commission has launched several new initiatives, in the attempt to restore public control over cyberspace, remedy the distributional imbalances generated by the rise of large-scale digital platforms, and promote Europe's digital sovereignty

The Conference on the Future of Europe aims at revising the democratic institutions of the EU. This contribution assesses representation in the EU through the lens of demoicracy, focusing on how the demos and the demoi are represented and how this interacts with the executive-legislative balance and party politics. As the Belgian polity is a living case for the EU but often as flawed as the latter

In a European Union of states and citizens, the budget of the Union continues to function principally as a budget between states. Despite various attempts over the decades to introduce reforms aimed at strengthening the connection with citizens, the budgetary system has shown itself to be resistant to change. However, the landmark agreements of 2020 on the new multiannual financial framework (MFF)

The ‘Conference on the Future of Europe’ aims to advance strategic policies and democracy in the EU. Discussions on these issues cannot afford to disregard a fundamental institutional dilemma of the EU's political system, the conflict between intense interdependence and power sharing in a multilevel polity for one, and autonomy of governments as a condition for democratic legitimacy of power for another

The debate on the rule of law in the EU is mainly taking place from an EU law point of view, stemming from the analysis of CJEU judgments and its interpretation of general principles and primary EU law. This article argues that only by comprehending the global context of rise of populism and delegitimation of the judiciary may we realise the risks that national judges and the CJEU started to take when

This article demonstrates that the role of the European Commission in the area of asylum policy is characterised by an imbalance between politicisation and rationality. Politicisation of the role of the Commission is especially visible in its proposals for border procedures in the New Pact on Migration and Asylum. We show that the efficiency and effectiveness of these proposals are not supported by

Differentiation has become a central topic of debate in the EU. Generally, it is considered a positive device for advancing integration in crucial policies, letting the unwilling states opt out from the new regimes. However, the debate has not sufficiently acknowledged that policy differentiation has been made possible by governance differentiation. It was the 1992 Maastricht Treaty's decision to inaugurate

This article discusses the implications of elements of the New Pact on Migration and Asylum from the perspective of fragmentation of “asylum seeker” status. Different parts of the legislative package tabled by the European Commission in September 2020 call into question the EU law view of asylum seekers as a single, indivisible category of protected persons. The retreat of EU law at external borders

The future skills and labour workforce shortages, together with the demographic challenges, and the economic impact of the COVID-19 sanitary crisis will increase the EU's need for highly skilled migration. In this comment, we argue that a successful reform of the EU Blue Card scheme should include more flexible eligibility criteria, process facilitations and generous intra-EU mobility provisions not

The Blue Card Directive 2009/50 has failed. It sets conditions for entry and residence in the EU for third-country nationals in highly qualified and well-paid employment. Recently, negotiations over its recast have come to life, and gives reason to discuss the way forward. This comment reflects on the European Blue Card Directive 2009/50 and its recast and the thoughts presented in this special issue

Since 2009, the “Blue Card Directive” has become one of the most important elements of the EU's legal immigration scheme for attracting the best immigrants to Europe. Taking advantage of its current revision, this contribution takes a legal theoretical look at the Directive. Drawing upon the republican conception of freedom defined as the absence of arbitrary interferences, this paper sheds light on

Leaving Iraq at the age of 37, after having built a life for myself there, was like uprooting a fully grown tree to plant it in a different soil. Back home, I had my parents, five sisters, three brothers and ten nephews and nieces surrounding me, providing me with the emotional and moral support I needed to survive. For some reason, they had managed to build their lives away from the danger, uninvolved

The endorsement/affirmation of the Global Compact on Migration and the Global Compact for Refugees in December 2018 has been accompanied by an intense discussion about the need to introduce new norms in these fields and about the actual legal force of the respective provisions. There was and there persists an open contrast between the openly declared non-bindingness of these Compacts and the widespread

The rule of law is a constitutional principle under the European Convention on Human Rights. Throughout its history, the rule of law has been the lodestar guiding the development of the case-law of the European Court of Human Rights. In recent years, the normative impact of this principle has been increasing in the case-law of the Court, in particular in cases dealing with the independence of the judiciary

This article employs the image of the antisyzygy, the yoking of opposites, as an analytical tool to understand the dynamic and unresolved tensions built into the very idea of the European Union. It describes the EU as a forming a supranational constitutional space which does not supersede nation states, but instead seeks to preserve their specific identities while promoting and protecting the fundamental

No abstract is available for this article.

Editorial: What the European Law Journal stands for; The ELJ's ecosystem; A call for ELJ Scientific Committee members; In this issue** In law as in life, there are exceptional people who cross your path, people who understand you and a situation in the blink of an eye, people who give disinterested but always thoughtful advices. To Loïc Azoulai, thank you. And since a journey is always multifaceted

This work argues that there is no univocal interpretation of what regulatory policy is and pursues. Taking the strategy of the European Commission as a starting point only, it addresses more specifically the Union legislature's perspective, which, in a democratic decision‐making process, cannot compromise its autonomy. In the unique constitutional universe of the European Union, the “Better Law‐Making”

The Citizens' Convention on Climate (CCC) gathered 150 people, randomly selected but representing the diversity of French society. Its mandate was to formulate a series of concrete measures aimed to achieve at least a 40% reduction of greenhouse gas emissions by 2030 (compared to 1990) while preserving social justice. The citizens auditioned experts on various topics from climate to economics and then

‘It is with great sadness that his many friends learned of the passing of Fernando Vasquez, on 16 July 2020, in Porto. I met Fernando Vasquez some thirty years ago, at a time when, together with Jean‐Jacques Paris, another friend who recently passed away, and under the direction of Odile Quintin in DG V of the European Commission, he was working on building a Social Europe. That was before the European

Is asking the Better Regulation Agenda (BRA) to answer the same preconditions it requires for any regulatory action a proper treatment? Does any assessment of the agenda necessarily imply a thorough definition of the costs and the benefits deriving from its application or is it enough to provide a few key insights to perform it? Is the BRA really so ideological, deriving from “a liberal analytical

This article performs an ‘impact assessment’ of the EU Better Regulation Agenda. It considers whether there is a clear definition of the problems that the EU Better Regulation seeks to address, the evidence base, whether Better Regulation more effectively responds to those problems than alternative options, and what the costs, benefits and broader impacts of the the Agenda may be. The analysis suggests

This article argues that while EU public procurement law increasingly allows public authorities to take environmental and social considerations into account in public purchasing decisions, it does impose limits on the possibility for authorities to incentivise corporate social responsibility (CSR) policies through public procurement. These specific limits are the result of the EU legislator's choice

Medical doctors can exercise their free movement rights to escape the control of professional regulation at the national level. This “darker side” of free movement of doctors has received a lot of attention. This article will show that the free movement provisions play an increasingly important role in medical disciplinary cases. The application of free movement law can make a positive contribution

The EU Commission has a long tradition of consulting interested parties when formulating its policies. While the rationale, format and legal basis relied upon by the Commission when holding public consultations have changed over time, its systemic inability to make those consultations equally accessible to all affected parties has remained constant. This article, by engaging with theoretically informed

This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well‐established categories does matter within it and may lead to better law‐making in the EU more generally. The legal grammar of a particular EU harmonisation measure—which can be more

No abstract is available for this article.

This article discusses freedom of movement under the lens of shifting boundaries of membership and traces the tension between the political and the economic rationale of European integration. It first reflects on the normativity of free movement and links it to the foundations of modern democratic citizenship. Subsequently, it discusses the role of free movement in the construction of EU citizenship

No abstract is available for this article.

Vulnerability is a concept that stems from ethics and legal theory. It has progressively gained momentum in international human rights law, in particular in the European contextof the European Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive “vulnerabilisation”

Acceptance of the meaning, operation and enforcement of the rule of law in the EU by its Member States is critical to the Union's legitimacy. Any perceived or real crisis in the rule of law thus merits careful consideration. This article focuses on how a crisis in the rule of law occurred within the EU and how the intended ambiguity of the rule of law has entrenched this crisis. This article argues

This paper looks at the use of metaphor and its effect on the interpretation of the ‘quality of law’ in Art. 8 cases of the European Court of Human Rights. It demonstrates the Court's reproduction of specific metaphorical frames ‐ a finding consistent with the use of metaphor in judgment experiments in cognitive linguistics. The Court employs metaphors conceptually coherent with those used in their

The trend towards the financialisation of housing since the 1980s and the global financial crisis exposed a dramatic lacuna in the legal protection of the right to housing. Yet, the right to housing features not only in national and international human rights instruments, but also in the EU Charter of Fundamental Rights. Charter rights are increasingly finding expression in the case law of the Court

The topic of citizen‐making—turning migrants into citizens—is one of the most politically contested policy areas in Europe. Access to European citizenship is governed by national law with almost no EU regulation. The Article brings to the fore normative concerns associated with citizen‐making policies in Europe (Section 2). It examines ethical dilemmas involved in the process of creating new citizens

Jurgen Habermas's discourse theory of law has shaped debates on what we consider to be legitimate law. This contribution will firstly identify the Zeitgeist in which discourse theory emerged. Secondly, it points out the emancipatory potential of law that discourse theory has helped us to understand, both on a domestic and a transnational level. Thirdly, the paper turns to discuss two recent challenges

This contribution seeks to illuminate the looming phenomenon of demultilateralisation and the return of and to the nation state, i.e. closure. Whereas many reasons for opening and closure have been discussed by Habermas in his eminent essay, we aim at providing an additional dimension, taking a psychological point of view and analysing this proclivity from a behaviourally informed perspective. Following

As exemplified by the pan‐European ‘Identitarian movement’ (IM), contemporary far‐right populism defies the habitual matrix within which right‐wing radicalism has been criticised as a negation of liberal cosmopolitanism. The IM's political stance amalgamates features of cultural liberalism and racialist xenophobia into a defence of ‘European way of life.’ We offer an alternative decoding of the phenomenon

This paper focuses on Habermas's notion of cosmopolitan democracy. Reconfiguring the basic ideas of democracy in postnational terms is inevitable if social and political integration is to succeed on a supranational level. In exploring Habermas's ideas, we draw on Ranciere, whose thought stands in a complex relationship to Habermas. On the one hand, Ranciere largely shares Habermas's diagnosis of the