‘Facultative’ and ‘Functional Mixity’ in light of the Principle of Partial and Imperfect Conferral. College of Europe Research Paper in Law 03/2019

The concept of ‘facultative mixity’ as first coined by Allan Rosas3 has sparked a much heated debate.4 Is it a matter of political expediency in the EU Council to decide on the mixed nature, or not, of a given agreement in so far as it falls within shared competence of the EU and its Member States? Considered as such, this concept is offset against ‘obligatory’ or ‘compulsory mixity’ which would then arise only where the Member States retain an exclusive competence for part of the agreement. It is apparent that the concepts of facultative and obligatory mixity so understood both rest on the premise that the mixed nature of an agreement is to be determined solely on the basis of the division of competence under the EU Treaties. The crucial exercise then lies in the correct appraisal of the ‘partial nature’ of the conferral of competence under the EU Treaties which, of itself, may prove to be a difficult exercise not least in a post- Lisbon setting.

To Give or to Grab: The Principle of Full, Crippled and Split Conferral of Powers Post-Lisbon. Research Paper in Law 04/2016

From the Introduction. The principle of conferral of powers occupies a prominent place in the Lisbon Treaty. Not only is it stated as a fundamental and horizontal principle in the common provisions of the Treaty on the European Union (Art. 5 TEU).2 For the first time utmost care has been given to lay down, in a Treaty text, also the modalities and the consequences of the application of this principle.3 As such, a catalogue of competence is introduced in Articles 2-6 TFEU which lists the “categories and areas of union competence” (Title I TFEU) whilst spelling out the nature of the competences conferred to the Union in those fields, for instance exclusive, shared or complementary. Moreover, it is recurrently and firmly stated that powers which are not conferred to the Union by the Treaties are to remain with the Member States (a.o. Arts. 4(1) & 5(2)TEU). Especially those new additions in the Treaties are revealing of the currently prevailing political context whereby the Member States seek to get a renewed grasp on the formulation, interpretation and application of the Treaty principle of conferral. This can hardly be considered in isolation from the development of case law of the CJEU, who deftly asserts exclusive jurisdiction to interpret this key structural principle of EU law

‘Ceci n’est pas .. Cassis de Dijon’: Some Reflections on its Triple Regulatory Impact. Research Papers in Law 4/2020.

The Cassis de Dijon judgement of 19792 and the famous oil on canvas “Ceci n’est pas une pipe” (often translated in English as ‘The Treachery of Images’ or ‘This is not a pipe’) by the Belgian surrealist painter René Magritte half a century earlier,3 have at least two characteristics in common. First of all, both learn that appearances may be treacherously deceptive. At face value Cassis de Dijon, by introducing the principle of mutual recognition, offered an easy and ready judge-made solution in response to EU regulatory inertia by reinstating the importance of national regulation at least of the export state. But as René Magritte warned by prominently inserting the words “Ceci n’est pas une pipe” on his painting of a tobacco pipe, what you see is not necessarily what you get.4 A deeper scrutiny of Cassis de Dijon and its consequences reveals a fundamental and direct impact on ensuing regulatory practices, even if perhaps not necessarily so originally intended. This finding lies at the core of the below reflections on the regulatory impact of Cassis de Dijon on both the EU and Member States level. Secondly, the painting by René Magritte not only continues to puzzle many of its viewers. It has also triggered a debate between himself and the French philosopher and social theorist Michel Foucault,5 which in itself has become a source of academic scrutiny and discussion until today.6 In the same vein, Cassis de Dijon continues to spark discussion, puzzlement and controversy forty years after the judgment was rendered, not merely in academia but also within the Court itself. Over time this has led to an express albeit only partial reversal of Cassis de Dijon in the Keck & Mithouard judgment of 1993,7 which in turn begged for further the clarification only rendered in the Tripeds case of 2009.8 The creator is thus also here an active participant rather than a mere bystander in steering the discussions about the meaning and scope of the emerging picture. Without seeking to be exhaustive on the matter, this contribution offers some reflections on what is conceived to be a triple yet intertwined regulatory impact of Cassis De Dijon. First attention is briefly given to its immediate impact on regulatory and democratic processes of European integration, as well as its decisive influence on shaping the new EU regulatory approach to harmonization. This is followed by some reflections on whether and to what extent this old judgment has an impact on the new delimitation of competences between the EU and the Member States, in particular in a new post-Lisbon setting which sought to clarify the division of competence. Lastly but importantly, consideration is given to the extent to which Cassis de Dijon has interfered with the regulatory capacity of the Member States in the absence of EU harmonization. In particular three tests seem to have emerged in the aftermath case law of Cassis de Dijon, each with potentially great impact on the Member States discretion to legislate: the ‘straightjacket test’, the ‘rubber-stamp exercise’, and the ‘balancing trick’. All too often these distinct yet stringently interrelated regulatory implications of Cassis de Dijon have been assessed in isolation, thereby potentially missing out on the complexity of the bigger picture

TTIP and Dispute Settlement: Potential Consequences for the Autonomous EU Legal Order. Research Paper in Law 01/2016

From the Introduction. As is apparent from the title “TTIP and dispute settlement: potential consequences for the autonomous EU legal order”, this paper takes a very targeted focus. The first part of the title was assigned by the organisers of the XXVIIth FIDE congress: “TTIP and dispute settlement”. Albeit very interesting and actual, it quickly became clear that such a topic raises a double conceptual problem. How could one possibly deal with such a broad topic in a talk of merely 20 minutes? And especially how to bring novel insights in such a short time span? As Marise Cremona has already mentioned,3 TTIP is probably the most widely debated and commented development in EU affairs of the last years. It therefore seemed indispensable to drastically narrow down the topic. The focus of this paper will thus firmly lie on the overall topic of the closing session: ‘its consequences for the EU’. This implies that the potential impact of TTIP dispute settlement on the USA or the importance thereof for investors or for attracting foreign investment is not as such discussed. The topic is further narrowed down to consider specifically the potential consequences of TTIP dispute settlement provisions for the autonomous EU legal order. The underlying idea is that, as the EU is short of being a state, international dispute settlement may raise crucial legal questions which are specific to the EU legal order and which need to be acknowledged as such