Mass Surveillance and Data Protection in EU Law: The Data Retention Directive Saga

This is volume 5 in the series Swedish Studies in European Law, produced by the Swedish Network for European Legal Studies. It focuses on EU criminal law and transnational police cooperation

The Constitutionalisation of National Identity in EU Law and Its Implications

The idea of repatriating national powers from the EU is en vogue. The EU Treaty as amended by the Lisbon Treaty gave considerably more weight to the principles of subsidiarity, proportionality and national identity. This paper will look into the potential limiting effect of the Lisbon Treaty’s emphasis on national identity upon EU legislative competence. Against constructive approaches regarding the added value of the national identity provision of Article 4 (2) TEU, this paper will attempt to unpack the constitutional lack of utility of the principle through a critical interpretation of new CJEU case law. We will look at cases before the Luxembourg Court where Member States have resorted to national identity as a means of derogating from their EU law obligations. It is argued that these cases have only been successful in rebranding the old CJEU cases on legitimate interests to a new breed of case law bearing the national identity tag. The CJEU seems to have envisaged a form of constitutionalism where although Member States enjoy a monopoly over the definition of national identity (the 'what'), the power to determine the compatibility of those interests with EU obligations (the 'how') is vested in the CJEU. As such, this paper will explore whether this development constitutes a cause for celebration vis-à-vis the repatriation of national powers from the EU

EU Law and International Cooperation in Criminal Matters: a tale of legal competence and political competency

This chapter provides an analysis of EU criminal justice as an external policy. It identifies its restrictions based on the lack of criminal law competence in the foreign policy realm. In lieu of the lack of such competence, the chapter will then discuss the advancement of indirect EU international cooperation in criminal matters by identifying briefly the instruments available and their legal basis. It will then turn to some case studies, starting with a consideration of the EU’s strategic partnership with Russia and the potential for a new EU-Russia legally binding agreement with criminal law implications and the issues of legislative competence surrounding it. The chapter also considers EU policy on capabilities enhancement in the Western Balkans as part of the development of regional cooperation with a view to EU accession. Once legal competence is established in this context, the purpose is to evaluate the political competency of the EU to influence public policy in the field of criminal justice

Towards a clearer delimitation of internal European Community competences.

This thesis is a study of the distribution of competences between the main actors in European integration: namely the European Community and the Member States. It aims to evaluate the place of the competence provisions in the current Treaty structure as well as within the Treaty Establishing a Constitution for Europe. This task first involves a legal-technical exercise based on a textual interpretation of different categories of competences within the above-mentioned sources. Second, it involves a review of the relevant Court of Justice case law with regard to those competences. The study of both has led the author to consider how the evolution of Community competence has given rise to the phenomenon of 'competence' creep'. It is argued that Member States contend that the Community assumes more powers than those it possesses. Thus, the thesis provides an insight into concerns about 'creeping competence'. Certain types of situations are identified under the title of 'creeping competence'. These include, the adoption of unjustified or undesired EC legislation under qualified majority voting the expansion of the Community's competence under Article 308 EC and finally the adoption of EC legislation that goes beyond the scope of Article 5 EC (principle of attribution of powers). The thesis will provide certain examples to underline the problem. It will take account of the use of the flexibility provisions of Article 95 EC and 308 EC with regard to the regulation of health and the Community's accession to the European Convention of Human Rights (ECHR), which are treated as case studies in the thesis. In the context of a problematic system of competences, the author will consider the assumptions made in the Nice and Laeken IGCs as well as the European Convention for a clearer distribution of competence and assess the role of the principle of subsidiarity as a tool against the expansion of Community competence into new policy areas. It is argued that the reform of subsidiarity will enhance EU legitimacy and enlarge the role of national legislatures in the Union. The reconstruction of subsidiarity procedures may remedy the tensions in the current system of competence and provide limits to the degree of EU intervention. Besides tidying up competences between the EU and Member States, European Constitutionalisation hides a question of political finality and further integration. How can the EU establish an effective and democratically legitimate governance beyond the Nation State Via a European Constitution or through alternative methods This question is particularly important in the current context following the French and Dutch rejection of the EU Constitutional Treaty. The chances of the EU Constitution being revived in the near future are slim, since it is unlikely that either France or Holland will soon hold another referendum. Thus, either a period of reflection shall be allowed to Member States or alternative routes to integration shall be considered. The thesis concludes with the hypothesis that as the EU Constitutional Treaty does not provide the answers to most of the questions posed by the Nice and the Laeken European Councils, enhanced cooperation may be utilised as a future method of governance and Fischer's 'Core Europe' as a tool capable of a redistribution of competences inside the Union. But then again the European Union needs to avoid a new iron curtain descending between those Member States that represent the 'core' and those that constitute the 'periphery'

Enhancing Energy Security in the European Union: Pathways to Reduce Europe?s Dependence on Russian Gas Imports

Should Russia escalate the Ukraine crisis, or threaten other states in post-Soviet space, the EU will need to be able to apply hard-hitting sanctions against Russian energy exports. However, the divergent dependence of European states on Russian gas imports will make it very difficult to achieve consensus on such sanctions. This article analyses the recent measures that the EU Commission has initiated to help reduce the dependence of European states on Russian gas. It explores the scope of EU competence to reduce Member-State dependence on Russian gas in three key areas: promoting the use of renewable and energy efficiency; completing the internal energy market and strengthening the EU?s position vis-à-vis external gas suppliers. The article?s conclusions examine the political factors which will hinder or enable the EU to promote greater gas supply security and highlight the importance of political communication in enhancing EU legal competence in energy security

Rebalancing Judicial Protection in Criminal Matters after Lisbon and Stockholm

While EU measures related to criminal and security law have been adopted for the past 20 years, the legal framework of the Treaty of Lisbon and the political impetus behind the Stockholm Programme have given them a new direction. This chapter explores the basis of protection of fundamental rights enshrined in Title V, Chapter 4 of the TFEU entitled ‘Judicial Cooperation in Criminal Matters and the Stockholm Programme’. This analysis is all the more important in the light of the new legal status attributed to the EU Charter of Fundamental Rights and the EU’s prospective accession to the European Convention on Human Rights (ECHR)

Comparing Mutuality and Solidarity in Its Application to Disaster Ethics

Often it has been observed that in disaster situations, people (including victims) become altruistic and are very willing to listen, obey and act in a manner that would help bring an end to the situation. In this chapter, linking disaster ethics and human rights, it is argued that this indeed is how it should be, disaster or otherwise, and that we have moral duties to oneself and to others. An individual exhibiting solidarity, comradery and altruism during a disaster is indeed behaving as a reasonable Self, and exercising ethical individualism as per Gewirthian philosophy. It is the duty of the State and society to act as a supportive State and a caring society. In order to do this, we need to be conditioned for ethical rationality before any whiff of disaster arises, i.e. in our day-to-day conduct and decision-making, at a personal, institutional and transnational level. Our ethical resilience during disasters can only be as robust as our rational moral compass during ‘peace-time’. This chapter argues that Gewirthian solidarity ethics (GSE) should play a role in European policy and action in order to provide a system that conditions ethical rationality and in order to fulfil human rights. This involves addressing our current understanding of human rights as distinct categories of civil, political, economic, social and cultural rights and to effect a shift towards a more holistic understanding of human rights, whereby the hierarchy of fulfilment does not always prioritise civil and political rights.Peer reviewe