Editorial Note: It was a good year....wasn’t it?

When a calendar year comes to an end, many of us pause to reflect on the previous twelve months. Just like a vigneron who takes the first sip of Beaujolais nouveau to see what the new harvest is like. With it comes a question: was it a good year? As always, the answer is neither a straightforward ‘yes’ nor a simple ‘no’. The same applies to the European Union where 2013 was neither black nor white but rather full of shades of grey. In some respects, it was a good year, in others an annus horribilis. But without question it was certainly a year of anniversaries

When Cives Europae became bargaining chips: free movement of persons in the Brexit negotiations

This article aims at taking stock of the Brexit developments thus far and provides the readers with an analysis of how, broadly understood, immigration has contributed to the results of the referendum and what role it plays in the negotiations between the EU and the UK. Brexit negotiations, as anticipated, have proven to be a very complicated and multifaceted affair. One of the most controversial items on the agenda of the negotiating teams have been the rights of EU migrating citizens residing in the United Kingdom as well as UK nationals, who have been exercising their free movement rights in one of the Member States of the European Union. This dossier was bound to stir controversies from the start. Alas, the pre-referendum debate, as well as events that unfolded in its aftermath, have turned Cives Europae into bargaining chips. Whatever the outcome of these negotiations, or - in more general terms - the Brexit itself, it is likely to leave a bitter aftertaste. This article aims at taking stock of the developments thus far and provides the readers with an analysis how broadly understood immigration has contributed to the results of referendum (section 2) and what role it plays in the negotiations between the EU and the UK (section 3). In the latter part, the analysis will cover the tentative agreement on the status of EU/UK citizens post-Brexit. While the deal was reached in December 2017, a draft Withdrawal Agreement presented in February 2018, there were still leftovers to be dealt with in course of 2018. Furthermore, the entry into force of Withdrawal Agreement should not be treated as a fait accompli. Bearing this in mind the readers are also offered an analysis of a hypothetical - for the time being - scenario of an unregulated withdrawal. Furthermore, a transitional period, which was being contemplated on when this article was finalised, is also taken on board

Exercises in Legal Acrobatics: Brexit Transitional Arrangements

With the imminent closure of the first part of Brexit negotiations, the EU and the UK are shift- ing the centre of gravity from discussions about the termination of membership to the future arrange- ments. Anyone au courant with EU affairs is aware that what is left of the two-year period laid down in Art. 50 TEU will not be enough to negotiate, to sign and to ratify a future trade agreement. This is one of the reasons why both sides have recently engaged in discussions about a transitional period. As this Article proves, this is idea has merits, yet it will be hard to accomplish a plausible solution. Arguably, it may be more beneficial, and less problematic, to extend the two-year period instead

The Sky Is Not the Limit: Mutual Trust and Mutual Recognition aprés Aranyosi and Căldăraru

In the present article, judgments of the European Court of Justice, together with the case of Aranyosi and Căldăraru, are put under the academic microscope. The analysis is conducted through the lenses of domestic judges. It starts by drawing a broader picture of the challenges that the domestic judiciary faces when it comes to EU criminal law, in particular the mutual recognition instruments. It argues that judges are faced not only with the legal framework of sometimes questionable quality but also with potential conflicts of loyalty resulting from the multiplicity and occasional inconsistency of applicable legal regimes. In turn, the analysis moves to the exegesis of the Aranyosi and Căldăraru line of jurisprudence, in particular to the already mentioned security vs justice conundrum, which domestic judges sometimes face. The article ends with conclusions looking into the current state of affairs, and suggestions are made regarding the way forward

The European Court of Justice blocks the EU's accession to the ECHR

The European Court of Justice delivered a long-awaited opinion on the accession of the European Union to the European Convention of Human Rights (Opinion 2/13) on 18 December 2014. To the surprise of many, the judges in Luxembourg held that the draft Accession Agreement is not compatible with the EU treaties because it undermines the autonomy of EU law. As a consequence, the negotiators will be called back to the drawing board to take the Court’s conclusions into account, or to come up with other solutions. The Accession Agreement would require a major revision, not just cosmetic changes. Moreover, any deal would require the consent of all ECHR contracting parties, including Turkey and Russia. With this opinion, the Court of Justice went against the will of the member states and has thus put itself on a collision course with them

Mind the Fog, Stand Clear off the Cliff! From the Political Declaration to the Post-Brexit EU-UK Legal Framework (Part I)

The Brexit saga has reached a watershed moment. The United Kingdom withdrew from the European Union on 31 January 2020 and, following the expiry of the transitional period laid down in the EU-UK Withdrawal Agreement, it ceased to be bound by EU law. By the same token, it entered unchartered waters as a former EU Member State trying to find its place in an economically integrated world. This article takes stock of the legal affairs as they stood on 1 January 2021. Yet, at the same time, it puts the new EU-UK legal framework in a broader perspective. For this purpose, it treats as a point of reference the Political Declaration, which was signed alongside the EU-UK Withdrawal Agreement. A good chunk of its potential has materialised in the EU-UK Trade and Cooperation Agreement, although in some respects the proposals laid down in the Political Declaration are yet to turn into reality. Thus, to confine it to history books would be rather premature. While it is impossible to predict the future, the time is right to put the EU-UK legal framework under the microscope and to analyse its main legal parameters. The present article offers such an insight. In part I, the centre of gravity is on institutional matters

Switching Gear: Law Approximation in Ukraine After the Application for EU Membership

In the wake of a full-scale Russian invasion, Ukraine applied for EU membership on 28 February 2022. In a matter of months, it was formally confirmed by the European Council as a candidate country. This has had a plethora of consequences; one of them is the obligation to approximate its national law with the EU acquis in its entirety. Unless there is a change of paradigm in EU pre-accession policy, transitional arrangements are strictly the exception to the rule, and therefore the law approximation effort has to go way beyond existing commitments under the EU-Ukraine Association Agreement, the Energy Community Treaty, and the Civil Aviation Agreement. Such switching of gear in the law approximation process comes with additional layers of complexity. For instance, compliance with the horizontal provisions of the Treaty on the Functioning of the European Union governing freedoms of the internal market requires comprehensive screening of national law before any legislative changes are made. Furthermore, law approximation with EU legal acts which can only apply when a country becomes a Member State must be carefully planned and timed. The legal system must be ready to accommodate EU law, with all the principles governing enforcement, including the direct application of EU regulations. While this is all doable, it must be handled with care, especially in a country whose economy and society at large have been shattered by war

Is there a way out of the Polish pickle? EPIN Commentary No. 31/22 January 2016

Poland is making headline news again. This time, however, not in a role of Central European Wunderkind surfing the economic crisis, but for reasons to be less proud of. Ever since the Prawo and Sprawiedliwość (PiS, a member of European Conservatives and Reformists group in the European Parliament) government took power after the elections in November, Poland has experienced political turmoil and is now facing accusations that the rule of law is in danger. This constitutes a major challenge for the European Union and for its other member states, which are looking for ways to deal with a recalcitrant state that makes a rapid U-turn on democratic fundamentals and takes any criticism hysterically. This is not the first time that the organisation has had to deal with such a case, yet solutions have not yet been found. Hungary is a case in point. And now Polish leaders too seem convinced about the virtues of the concept of illiberal democracy. Which prescription should the EU use to buck the trend and what are the potential side-effects