105 research outputs found
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The EU’s competence to conclude trade agreements: the EU-Singapore Opinion
A definitive reassessment of the constitutional, economic, institutional and judicial dimensions of the EU internal market, including Brexit
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The anatomy of autonomy: themes and perspectives on an elusive principle
Few EU law principles have attracted as much attention in the last few years from such diverse audiences as that of autonomy. International and EU lawyers, constitutional and trade specialists, scholars and practitioners, decision-makers and the civil society have all been exercised by the implications that the principle of autonomy has in areas that range from the protection of fundamental human rights to investment arbitration.
This paper aims to reflect on the scope and legal implications of autonomy in two way. First, it will step back and tease out four themes that emerge from the origins and development of the principle. It will, then, look forward by identifying three perspectives which are central not only to the position of the principle in the light of the recent Opinion 1/17 on the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, but also to its further evolution as a significant part of the fabric of the EU’s constitutional order
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The autonomy of EU law and international investment arbitration
This article argues that, in the context of international investment law, the principle of autonomy need not be construed as broadly as the recent judgment in Achmea may appear to suggest. The Court’s approach in this case is formalist, inward-looking and hostile to the harmonious co-existence between EU and international law. The article argues, however, that this conception of autonomy ought to be confined to the specific legal and policy context of investment agreements between Member States of the Union. A careful reading of Achmea supports such a view. There are, also, sound conceptual, legal, and policy reasons that militate for a more open approach to autonomy when it comes to the Union’s trade agreements with third countries
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Negotiating International Trade Treaties after Brexit
The outcome of the referendum of 23rd June 2016 has focused attention on two formidable tasks, namely the divorce arrangement between the United Kingdom and the EU and the agreement on the future relationship between the two parties. There is, however, a third layer of uncertainty and complexity that the UK would have to face as a non-Member State, that is its trade relations with third countries
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Managing Inter-Legality - Conceptualizing The European Union's Interactions With International Investment Law
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The Relevance of EU Law for Arbitral Tribunals: (Not) Managing the Lingering Tension
The tensions between European Union (EU) law and intra-EU bilateral investment treaties (BITs) have become increasingly visible: they involve national and transnational courts, arbitral tribunals and courts in third states, and arise in a variety of procedural settings and with increasing intensity. Written at a time when questions about the very foundations of the interactions between EU and intra-EU BITs have been raised before the Court of Justice of the European Union, this article highlights the legal and policy factors that may explain the intensity of the current dilemmas. It reflects on the maximalist and polemical approach that a number of actors have adopted over the years, and points out the pitfalls of ignoring the usefulness of pragmatism and comity
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The European Union in the global security architecture
Whilst its genesis was focused on the economic dimension of market building, the whole process of European integration has always been, in essence, a security policy project. Seeking to ensure the impossibility of another war in Europe has been a central part of the DNA of the European polity. It was for this reason that the wars in the former Yugoslavia shocked the European Union (EU) system so profoundly. They also proved to be a powerful incentive for the development of the Union’s foreign and security policy, both in terms of its legal grounding in primary rules and its increasingly prominent position in the rhetoric of the Union’s elites.
However, to focus exclusively on its self-referential aspects is to ignore not only the direct interaction between the development of the EU’s security and defence policy and the fundamental and constant changes of the international geopolitical landscape in the last twenty years, but also the distinct emphasis on the international outlook of the Union’s strategic objectives and the relevant provisions of the Treaty of Lisbon. In terms of the geopolitical changes, whilst they have had an impact on the Union in various ways, two in particular are noteworthy. On the one hand, there has been a growing expectation by third parties, such as the United States, countries where EU missions are deployed and international organizations such as the African Union, that the EU shares the responsibility of monitoring international security. On the other hand, international organizations directly involved in global and regional security governance expect the EU to participate too.
This chapter explores the extent to which there is congruence between the current global security architecture and the Union’s ambition to assert its identity on the international scene as a security actor. It identifies certain factors which are inherent in the genesis of the Common Security and Defence Policy (CSDP) and which have imposed a constraint on its development, preventing it from achieving the Union’s ambition and meeting the expectations of other security actors
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The Emsland-Stärke test of abuse of law in the law of agriculture and free movement of goods
The law of agriculture and free movement of goods provides an interesting context within which to examine the application and development of the principle of abuse of law: on the one hand, the latter featured in the relevant case-law as early as the 1970s; on the other hand, it was within this area that the Court responded to various
calls about formalising the criteria for the application of the abuse of law principle and articulated the Emsland-Stärke test.
This analysis in this chapter is structured as follows. Firs, the application of the principle of abuse in the period preceding the Emsland-Stärke test will be outlined. Second, the Emsland-Stärke test, its strands, and implications will be analysed. Third, the subsequent application of this test and, in particular, the role of national courts will be assessed
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The Interpretation of Mixed Agreements
In relation to the jurisdiction of the Court of Justice to interpret mixed agreements, it has been argued that:
‘[whilst] the case-law [is] copious, … successive developments, far from offering a smooth passage, have constructed a long and winding path, whose complex route demands certain adjustments in order to help its confused users find their way’.
This argument was made by Advocate General Colomer in his Opinion in Case C- 431/05 Merck. In the same Opinion, he refers to the ‘deficiencies’ of the relevant case-law as well as the latter’s ‘illogical’ consequences.
This Chapter will examine whether this statement is borne out by the case-law of the Court of Justice. The analysis is structured in thee parts. First, it will examine the origin of the Court’s approach to its jurisdiction. Second, it will set out the parameters of the wide construction of its jurisdiction in the contest of the preliminary reference procedure. Third, it will outline its approach as developed in the context of enforcement proceedings. Finally, it will analyse the above developments in the light of the more recent judgment in Case C-431/05 Merck. Throughout this analysis, the threads which bring together the different strands of the Court’s case-law and the quest for identifying the Community interest, as well as the methods which would serve it best, will be examined
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