The CJEU vis-à-vis EU and non-EU investors, between national and european solidarity: golden shares, sovereign investment and socio-economic protectionism under free movement rules

The fundamental issue underlying this essay is the tension between the EU’s aims of market integration on the one hand, and, on the other, the intervention of Member States in the economy and welfare provision and the exercise of public functions by national authorities in sensitive industrial sectors. In this respect I have focused on one specific aspect: the CJEU’s case law on the special powers held by the State in formerly public companies where the rights conferred on shareholders by ordinary law are reduced for the benefit of public entities. Besides European golden shares, my contribution had dealt with the access to the EU’s market of non-EU public/private hybrids, namely sovereign investors such as sovereign wealth funds (“SWFs”) and state owned enterprises (“SOEs”). The first aim of my research is to investigate in what sense, to what extent and for what reasons the golden shares jurisprudence represents a privileged – although atypical – sedes materiae to illustrate the content and extent of EU economic/market integration, the connection between the latter and the two interrelated concepts of social integration and EU solidarity, and the impact of such dual integration (both economic and social) on Member States’ solidarity. In this regard, three main questions arise: has the CJEU been too activist in condemning Member States with regard to privat(is)e(d) undertakings, or is its approach justified in the light of the EU’s free market objectives? Is the up-to-date case law likely to endanger the solidarity on which the provision of SGEIs is grounded? Is the scope of manoeuvre currently accorded to Member States too narrow to justify national socio-economic policies on golden shares under the free movement rules (especially, as will be seen further on, from the point of view of the exceptions to these rules)?. My second general aim is to identify the main concerns raised by the access of SWFs and SOEs to the EU market and, then, to assess whether action by the EU is welcome and necessary in this area. In this respect, the main questions are: is it conceivable a European golden share to restrict this kind of investments to be shaped on the basis of a European notion of solidarity? Should the CJEU be proactive and, for instance, admit ‘new’ Cassis-Gebhard overriding reasons of general interest that could not be admitted vis-à-vis intra-EU investments? Could the derogation provided for in Art. 65.1 b) allow for a restriction that is compatible with EU law? And in that case, what kind of connection would there be between national and European solidarity?The fundamental issue underlying this essay is the tension between the EU’s aims of market integration on the one hand, and, on the other, the intervention of Member States in the economy and welfare provision and the exercise of public functions by national authorities in sensitive industrial sectors. In this respect I have focused on one specific aspect: the CJEU’s case law on the special powers held by the State in formerly public companies where the rights conferred on shareholders by ordinary law are reduced for the benefit of public entities. Besides European golden shares, my contribution had dealt with the access to the EU’s market of non-EU public/private hybrids, namely sovereign investors such as sovereign wealth funds (“SWFs”) and state owned enterprises (“SOEs”). The first aim of my research is to investigate in what sense, to what extent and for what reasons the golden shares jurisprudence represents a privileged – although atypical – sedes materiae to illustrate the content and extent of EU economic/market integration, the connection between the latter and the two interrelated concepts of social integration and EU solidarity, and the impact of such dual integration (both economic and social) on Member States’ solidarity. In this regard, three main questions arise: has the CJEU been too activist in condemning Member States with regard to privat(is)e(d) undertakings, or is its approach justified in the light of the EU’s free market objectives? Is the up-to-date case law likely to endanger the solidarity on which the provision of SGEIs is grounded? Is the scope of manoeuvre currently accorded to Member States too narrow to justify national socio-economic policies on golden shares under the free movement rules (especially, as will be seen further on, from the point of view of the exceptions to these rules)?. My second general aim is to identify the main concerns raised by the access of SWFs and SOEs to the EU market and, then, to assess whether action by the EU is welcome and necessary in this area. In this respect, the main questions are: is it conceivable a European golden share to restrict this kind of investments to be shaped on the basis of a European notion of solidarity? Should the CJEU be proactive and, for instance, admit ‘new’ Cassis-Gebhard overriding reasons of general interest that could not be admitted vis-à-vis intra-EU investments? Could the derogation provided for in Art. 65.1 b) allow for a restriction that is compatible with EU law? And in that case, what kind of connection would there be between national and European solidarity?Refereed Working Papers / of international relevanc

The administrative tribunal of the International Labour Organization (ILOAT), the International Court of Justice (ICJ) and the right of access to justice for the staff of international organizations: the eeed for a reform in light of the ICJ Advisory Opinion of 1 February 2012

With the Advisory Opinion of February 2012 on Judgment No. 2867 of the ILOAT the ICJ choose to acknowledge, once and for all, the limits of its relationship with the ILOAT \u2013 limits it had already emphasized in previous advisory opinions on judgments of the UNAT and ILOAT. Moreover, it has brought attention to the new UN internal justice system and, finally, questioned the compatibility of the procedure provided for by Art. XII of the ILOAT Statute with the \u201cpresent-day principle of equality of access to courts and tribunals\u201d. In this respect, the main argument implied in the paper is that international organizations should take measures to establish an appellate tribunal. It is the ILOAT that, insofar as the most representative of international administrative tribunals, should take the initiative. Indeed, with regard to the provisions governing employment relationships, the development, as well as the uniform interpretation and application, of the internal law of international organizations must be ensured, rather than by the ICJ, by international administrative tribunals. Due to their nature and mission, the latter are better equipped to settle staff disputes between an international organization and its staff members

Omosessuali europei: quali diritti?

1noopenopenDaniele GalloGallo, Daniel

The Preliminary Ruling Procedure, Today: Revisiting Article 267 TFEU’s Constitutional Backbone

As the title of the Special Issue suggests, its main purpose is to shed new light on the content, scope, extent, and limits of Article 267 TFEU in today’s Union and, in turn, on the nature of this procedure and the European Court of Justice (ECJ)’s role as a sui generis supranational court. Such role has been played first and foremost through the rulings rendered in the context of the preliminary ruling procedure, which has been defined as the ‘keystone’ of the EU judicial system,2 the ‘most important aspect of the work of the Court’,3 the ‘jewel in the Crown’ of the Court’s jurisdiction,4 and the ‘genius’ without which core principles, such as direct effect and primacy, could have not been conceived.5 Indeed, the procedure enshrined in Article 267 TFEU has shaped and continues to shape profoundly the EU legal order and the relationship between the EU and the Member States.Moreover, this procedure shall not be seen simply as a tool used by the Court of Luxembourg to strengthen the evolution of EU law. In fact, the way Article 267 TFEU has been constantly interpreted, redesigned, and materially reformed over the decades is also a symptom of the dynamics underpinning such evolution. This transformative and mimetic nature of Article 267 TFEU explains the evergreen interest in the procedure despite the absence of any amendment to the Treaties since the 1950s, confirmed by the large number of studies published on the subject over the last few years

From Autonomy to Full Deference in the Relationship between the EFTA Court and the ECJ: The Case of the International Exhaustion of the Rights Conferred by a Trademark

Differently from other international tribunals set up in the context of regional economic integrations, the existing relationship between the EFTA Court and the ECJ, having been “institutionalized” at a primary level by the EEA Agreement itself, is naturally apt to give rise to a structural, natural and original interdependence between the two phenomena of mirror jurisdiction and mirror legislation. The relevance of the ECJ case law for the EFTA case law is not limited to the references to the former court case law, which can be found in all the advisory opinions and in all the judgments given up to now by the latter. It also and above all reveals itself in the constant adoption both of the reasoning made by the ECJ and of the constitutional principles of EU law. By putting on the same level its jurisprudence and that of the ECJ, the EFTA Court attributes to both of them the same efficacy in terms of judicial precedent. This does not mean that the EFTA Court has restricted itself to passively adopt the ECJ case law. EFTA judges have had a relevant influence on the ECJ in the course of the years. In doing so the EFTA Court has built up a strong judicial dialogue with the ECJ, according to the EEA principle that the interpretation and application of EEA law and EU law must be carried out “in full deference to the independence of courts”. In some other cases the EFTA Court has even developed reasonings which seem to underline a detachment of the former from the criteria and principles adopted by the ECJ. In this context, the L’Oréal case represents the first and until now only case in which the EFTA Court had to decide on a question which had already been the subject of an explicit conflict with the ECJ. The issue at stake is the admissibility of the principle of international exhaustion of the rights conferred by a trademark, that consequently functions as appropriate sedes materiae for the purpose of clarifying the degree of autonomy characterizing the EFTA Court vis-à-vis the ECJ and its case law. This working paper aims at explaining why and to what extent the choice made and the reasoning developed by the EFTA Court to abandon its previous case law in favour of the ECJ case law in the L’Oréal case seems to be more inspired by political considerations than by a purely legal reasoning. The analysis will then show the reasons why L’Oréal goes beyond the issue of the international exhaustion of the rights conferred by a trade mark and concerns structural and institutional questions pertaining to the legal and economic aims of the EEA law and the EU system. It will be finally underlined in what sense the EEA Agreement must be interpreted and construed as meaning that the uniformity and consistency in the case law of the two courts have to be always and in any case prioritized, notwithstanding the different aims and the lower degree of integration of the EEA system in comparison with the EU legal that seemed to constitute, until L’Oréal, the only exception to the objective of legal homogeneity acknowledged by the EEA Agreement

Rethinking direct effect and its evolution: a proposal

This article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it

The Portuguese Constitutional Court case law on austerity measures: a reappraisal

In different cases in these last years, the Portuguese Constitutional Tribunal (PCT) has reviewed the legality on some of the austerity measures agreed with (but effectively imposed by) the Trojka – the European Commission (Commission), the European Central Bank (ECB) and the International Monetary Fund (IMF) – as conditions for the release of the loan package granted to Portugal in May 2011. As it is well-known, some of those austerity measures have been declared unconstitutional. This paper tries to shed some light on a number of questions, both theoretical and practical, to which those judgments give rise. The jurisprudence of the PCT raises crucial issues which the constitutional courts of EU Member States will certainly need to address in the future: what is the boundary between judicial activism and the judicial recognition of fundamental social rights as a remedy to the legislature’s minimalism in ensuring the protection of those rights? When can legislative action, insofar as resulting from the democratic process, no longer be regarded as the best way to secure that the rights of citizens are safeguarded? To what extent can judges require the legislature to take social rights ‘seriously’? In this regard, we believe that, even though judges obviously do not create the law, they should be active – rather than activist or creative – agents of change whenever constitutional rights are put at risk by national legislation – whether or not the latter is the result of an international obligation or constraint – in order to behave as guardians of last resort for citizens’ fundamental rights.In different cases in these last years, the Portuguese Constitutional Tribunal (PCT) has reviewed the legality on some of the austerity measures agreed with (but effectively imposed by) the Trojka – the European Commission (Commission), the European Central Bank (ECB) and the International Monetary Fund (IMF) – as conditions for the release of the loan package granted to Portugal in May 2011. As it is well-known, some of those austerity measures have been declared unconstitutional. This paper tries to shed some light on a number of questions, both theoretical and practical, to which those judgments give rise. The jurisprudence of the PCT raises crucial issues which the constitutional courts of EU Member States will certainly need to address in the future: what is the boundary between judicial activism and the judicial recognition of fundamental social rights as a remedy to the legislature’s minimalism in ensuring the protection of those rights? When can legislative action, insofar as resulting from the democratic process, no longer be regarded as the best way to secure that the rights of citizens are safeguarded? To what extent can judges require the legislature to take social rights ‘seriously’? In this regard, we believe that, even though judges obviously do not create the law, they should be active – rather than activist or creative – agents of change whenever constitutional rights are put at risk by national legislation – whether or not the latter is the result of an international obligation or constraint – in order to behave as guardians of last resort for citizens’ fundamental rights.Refereed Working Papers / of international relevanc