Cross-border public care and adoption proceedings in the European Union

The free movement of persons within the EU has meant that children at risk of harm from family members may be living in a Member State of which they are not a national. The child may be made subject to legal measures under the national law of the host State for the protection of their welfare. This article explores the competence of the EU to protect children in these circumstances, and the scope of the Brussels IIa Regulation in governing jurisdiction over child protection proceedings. It discusses the difference between national child protection systems and the political controversy surrounding English law on adoption following care proceedings issued over a child who is a national of a different Member State. It suggests that further information sharing on national systems and cooperation between courts is necessary for the effectiveness of the law and to encourage understanding of legitimate variation in Member State national family law.     

Shifting Boundaries of Membership: The politicisation of free movement as a challenge for EU citizenship

This article discusses freedom of movement under the lens of shifting boundaries of membership and traces the tension between the political and the economic rationale of European integration. It first reflects on the normativity of free movement and links it to the foundations of modern democratic citizenship. Subsequently, it discusses the role of free movement in the construction of EU citizenship and argues that the genesis in market integration casts a long shadow which hinders EU citizenship's potential to fully display the logic of political and social equality. Under current conditions of huge wealth discrepancies between member states, the prevailing form of horizontal integration necessarily brings about a tension between mobility and solidarity, which in turn creates a barrier for further developing EU citizenship. It is concluded that strengthening an intra‐European dimension of solidarity is needed in order to substantiate the right to move as an equal European citizenship right.     

Comparing the access conditions for minimum income support in four EU member states for national,EU and non-EU citizens

This research analyses the conditions imposed on national, EU and non-EU citizens who wish to access minimum income (MI) benefits within four EU Member States, specifically within Finland, France, Ireland and Spain. The primary aim is to identify and compare the required MI access conditions. Furthermore, focus is given to the residence requisites, which are discussed in relation to relevant supranational regulations in order to detect possible multilevel implications. The paper concludes with the identification of different MI conditions, such as stricter age requisites in France and Spain. Moreover, the study of national cases allows for consideration of how the EU social protection floor works at the national level. In this regard, the restrictions that affect EU/EEA migrant jobseekers and economically inactive population groups who wish to access MI in Finland, France and Ireland show the limits of the EU minimum social assistance floor, only recognised for EU/EEA migrant workers. Finally, implications arise according to human rights instruments such as the European Social Charter, which demands that social assistance shall not be confined to nationals or to certain categories of foreigners, allowing for comparison between the different personal scopes of the equal treatment principle required by the distinct supranational levels.     

Resolving Incompatibilities of Bilateral Investment Treaties of the EU Member States with the EC Treaty: Individual and Collective Options

Bilateral Investment Treaties (BITs) concluded by the EU Member States contain substantially similar clauses, including free movement of capital and investor‐to‐state dispute resolution. Article 307 EC provides for the primacy of pre‐accession treaties over the EC Treaty and simultaneously requires the Member States to eliminate their mutual incompatibilities. The European Court of Justice has declared that free movement of capital clauses of Austrian and Swedish pre‐accession extra‐EU BITs are incompatible with the EC Treaty as they will impede any restrictions on the movement of capital imposed as future Community legislation. A similar ‘free movement of capital’ clause is present in all extra‐EU BITs of the Member States, whether pre‐ or post‐accession. Article 307, however, does not apply to the post‐accession treaties which are equally capable of contriving the same consequences of impeding the application of the EC Treaty. In addition, the application of intra‐EU BITs provides investors from BIT party states access to the investor‐to‐state dispute resolution which is not available to investors from the Member States who do not have BITs with those Member States. This is discrimination and may distort the principle of equal treatment within the EU. Furthermore, the newly acceding EU States are facing extensive arbitral claims for carrying out the BIT‐EU conflicting obligations within their respective territories.     

Civil Protection Cooperation in EU Law: Is There Room for Solidarity to Wriggle Past?

This article provides insight into the under‐researched area of civil protection cooperation and disaster response capacity in EU law. It discusses how the mechanisms set up by the EU have assisted Member States in supporting one another when faced with natural or man‐made disasters, including those perpetrated by terrorists. In particular, the article provides a critique of the Article 222 of the Treaty on the Functioning of the European Union (TFEU) clause, which has introduced the principle of solidarity within the EU's security strategy. The author explores the broadened notion of ‘threat’ in Europe and assesses the significance of the Solidarity Clause vis‐à‐vis the level of commitment required by Member States for its coherent implementation. The article then contrasts Article 222 TFEU with the mutual defence clause of Article 42 (7) Treaty on European Union (TEU), and finally points into certain ‘grey areas’ that may have a diminution effect upon the political message concerning the EU as a community based on solidarity.     

Responsive Adjudication and the ‘Social Legitimacy’ of the Internal Market

This article is concerned with the social legitimacy of EU free movement adjudication. What does social legitimacy entail within the multi‐level ‘embedded liberalism’ construction of the internal market? How can the objective of free movement (market access) and a commitment to social diversity both be pursued without one necessarily trumping the other? This article seeks to contribute to these questions on the basis of a discussion of what has come to be known as the argument from transnational effects and the development of an adjudicative model that can be termed ‘socially responsive’. On the basis of an ‘ideal types’ analysis of the case law of the Court, it is concluded that responsiveness to Member State social context is lacking in any coherent form in the case law of the Court of Justice of the European Union. However, a responsive model of adjudication can be (re)constructed by streamlining the identified ideal type adjudicative rationales. In the midst of this process of discovery, an operational rationale to establish the substantive (social) scope and reach of the internal market shall be submitted.     

What Does Free Movement Mean in Theory and Practice in an Enlarged EU?

Abstract The purpose of this article is to review the main challenges to the principle of free movement of persons in theory and practice in an enlarged European Union. The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro‐security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm?     

Occupational Accidents from an EU Perspective: Is There a Place for the Principle of Freedom of Choice?

Abstract:  It is evident that one of the most crucial issues concerning the future of European integration is that between social rights and market freedoms. This article is aimed at investigating whether, within a EU law perspective, there exists a legal basis on which the introduction of the freedom of choice as a ruling principle could be founded within the highly sensitive sector of social protection and occupational accidents. In order to answer this question, this article will focus on two aspects of the subject matter. The first concerns the 'reality and myth' of the potential of EU competition law to interfere with Member States' competence in organising their social security systems, particularly as it relates to occupational accidents. The second, the question of health and safety, which at present appears to be an EU Commission priority, may provide a useful starting point in order to avoid a partisan answer to our question. The conclusion is that the potential of EU competition law to interfere is a reality, and not a myth, and the health and safety issue appears to be a crucial element in excluding a pure market model based on the freedom of choice.     

Police Cooperation across the Irish Border: Familiarity Breeding Contempt for Transparency and Accountability

This article critically examines the practice, methods, and regulation of cross‐border police cooperation between the Republic of Ireland and Northern Ireland. Despite legal and political divisions, police cooperation has survived and flourished in recent years especially among police officers on the ground. By comparison, the development of transparent regulatory and accountability structures and processes has been disappointing. While there have been domestic initiatives at the intergovernmental and legislative levels, these have tended to emphasize the centrality of direct engagement between the police chiefs and senior civil servants at the expense of formal transparent procedures. EU instruments have been marginalized as the police forces and their administrations prefer informal networks and force‐to‐force agreements which, it is argued, shield cross‐border police cooperation from standards of transparency, oversight, and accountability which are essential to its legitimacy. They also highlight the limitations of the current EU legislative approach to cross‐border police cooperation.     

The welfare family

This article analyzes family transformations resulting from the impact of social welfare policies and modernization in Guadeloupe, an island in the French Caribbean. The analysis is taken from a study of three-generational families in which a “pivot” member between 49 and 53 years of age, one parent, and one adult child were interviewed. The study, combining both quantitative and qualitative methods, concerns the forms of cultural, domestic, and economic exchanges between the generations, in addition to the various social welfare allowances received by the members of the families who were interviewed. The results show the complementarity between public and family forms of support. They also show how social welfare benefits have transformed the respective social status of different generations, the functioning of family solidarity, and the ways that poverty is being fought.     

National Parliaments in the European Union: Are There Any Benefits to Integration?

Abstract: Scholars and observers alike agree that the European Union has weakened national parliaments. This article posits that such a view, while generally accurate, ignores ways in which the EU has helped national parliaments in their function as regulators of society. It identifies two key mechanisms: precedent setting and policy transfer. First, the EU has produced laws on topics considered beyond the traditional remit of national parliaments. The EU's intervention has justified the production of unprecedented domestic laws that go well beyond the incorporation of EU principles. This has expanded the legislative reach of national parliaments. The article considers the experiences of Italy and The Netherlands in the area of antitrust. Second, the EU has fostered an environment conducive to cross‐national lesson drawing. The resulting knowledge has helped the design of more effective domestic legislative frameworks. This has confirmed the viability of national parliaments as regulatory institutions. The article examines the Open Method of Co‐ordination and its application to the areas of employment and social inclusion. It concludes with a discussion of parliaments in future Member States and in Mercosur.     

The welfare family: Three Generations in Guadeloupean Society

This article analyzes family transformations resulting from the impact of social welfare policies and modernization in Guadeloupe, an island in the French Caribbean. The analysis is taken from a study of three-generational families in which a “pivot” member between 49 and 53 years of age, one parent, and one adult child were interviewed. The study, combining both quantitative and qualitative methods, concerns the forms of cultural, domestic, and economic exchanges between the generations, in addition to the various social welfare allowances received by the members of the families who were interviewed. The results show the complementarity between public and family forms of support. They also show how social welfare benefits have transformed the respective social status of different generations, the functioning of family solidarity, and the ways that poverty is being fought.     

There Must Be Some Way Out of Here: The Crisis,Labour Rights and Member States in the Eye of the Storm

This article considers the impact of the economic, social and political crisis on the labour law regimes of two of the Member States of the EU most affected; Greece and Ireland. Both countries have been the recipients of ‘bail‐out’ deals, negotiated and monitored by what has become known as the ‘Troika’ of the European Commission, the European Central Bank and the International Monetary Fund. The article considers the extent to which both countries have been required to make amendments to their labour law regimes as a condition of their bail‐outs. It argues that the changes demanded reflect the basic norm now governing the EU legal order, namely that of ‘competition’; the logic of market integration based on the primacy of economic competition. The article sets the reforms in Greece and Ireland within the broader context of the ‘social deficit’ problem of the EU construction.     

Democracy and Legitimacy in the Shadow of Purposive Competence

This article argues that the way EU competences are defined plays an important role in the social legitimacy problems of the EU. The fact that its powers are purposive compels the EU to privilege narrow functional goals and act in a highly focused way. This has the consequence that politics cannot be meaningful within the EU, since essential choices of direction are pre‐empted. It also has the consequence that EU law is over‐instrumental and lacks expressive qualities, alienating the public. Now that EU law is so broad, the same defects are being imposed increasingly on Member States. Without another form of conferred power, the legitimacy of the EU, and of law and government in Europe, will be increasingly undermined. The constitutional DNA, which has been a functional success for Europe, may also be its political nemesis.     

Is the Open Method of Coordination Appropriate for Organising Activities at European Level in Sensitive Policy Areas?

This article addresses the question of the relevance of the most recent soft policy instrument of the EU, the open method of coordination (OMC), for organising actions at European level in politically sensitive areas. In addition to describing its origins and operational principles, we will compare its application to the areas of employment and social inclusion. Two hypotheses make up the structure of the text. The first is that the discourses produced in the framework of OMC in the areas of employment and social inclusion are broad enough to cater to the different welfare models, but that the changes to be made by the Member States to be in line with the European discourses differ considerably, depending on their welfare state family and their initial situation. The second is that the form of OMC is variable, depending on policy area. Our conclusions confirm both of these hypotheses.     

Cross Border Health Care: An Analysis of Recent ECJ Rulings

Recent rulings of the European Court of Justice show a trend towards a virtual European health-care basket. Four developments underlie this trend. First, the competence of the European Union seems to mature in the field of health care. Secondly, through a variety of authorisation procedures, individual Member States can to a large extent determine the conditions for cross border care. Thirdly, recent court cases indicate that the co-ordination of cross border care increasingly becomes a EU matter. Finally, in particular border regions, more flexible procedures for cross border care are being developed. An analysis of these developments from an (economic) institutional/constitutional point of view shows that potential Pareto-improvements can be expected from recent changes. These improvements depend on the institutional/constitutional framework into which these rules and engagements are embedded. Our analysis suggests that, although the current (increasing) role for the EU seems desirable, diminishing the role that individual Member States can play is not. National authorisation procedures, local/regional arrangements and flexible rulings are mechanisms that can secure an efficient level of output and an optimal size of the jurisdiction responsible for cross border care. This leads to the following recommendations: Current authorisation procedures (which differ per Member State) have to be maintained in order to secure an optimal community size for cross border services and goods; Bilateral agreements and flexible procedures in cross border regions should be stimulated in order to adapt institutional arrangements to the demand for cross border care by (a group of) individuals. The increased competency of the EU in the field of health care can best be used to make authorisation procedures more consistent and stimulate regional cross border care arrangements.     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

An American Looks at the European Union

Abstract: Anyone who has followed the evolution of six European nations from a simple Coal and Steel Community to the current twenty‐five Member State European Union (EU), has witnessed a truly remarkable passage. Nonetheless, the EU remains a decidedly jerrybuilt affair. Through numerous enlargements, increased competences, changes in structure and operation, the Union has been bedevilled by the fact that it is neither a simple international treaty with 25 signatories, nor a truly federal union. Rather, the EU has operated, sometimes effectively, often shakily, between these two extremes; exhibiting a sort of ‘fear of federalism’. From a US perspective, this article looks at the present state of the European Union and asks why it has met its potential in some ways, but has fallen so far short in others. Obviously, the tension between the Member States and the Community institutions is one reason. The article asks why do the states compete so much with one another, when their true competition is often with non‐European entities? Why does the European Council never seem to act in a timely manner? Why do euro‐citizens have so poor of an appreciation of what the Community does for them? Why does the Common Agricultural Policy, which contributes such a small amount to European gross domestic product, so dominate the EU budget and agenda? Can the euro, clearly the world's second currency after the US dollar, ever win over its doubters and harmonise European financial service markets? Does enlargement improve or threaten the future of the Community? And can its Common Foreign and Security Policy ever be successful if it is forced to compete with parallel politics in the Member States? All of these questions are addressed in this article with the hope that, through an external critique, the EU will live up to its potential both at home and abroad.     

Reflecting on Brexit: migration myths and what comes next for EU migrants in the UK?

This article considers the potential impact of Brexit on the family and welfare entitlement of EU migrants living in the UK and of UK migrants living in other EU Member States. Whilst the vast majority of those campaigning for the UK to leave the EU (publicly at least) argued in favour of those already present in the UK at the time of the referendum having their status protected, the government has been considerably less vocal in its support for this outcome. As such, EU migrants living in the UK presently face considerable uncertainty as to their own and their families’ future legal status and entitlement to welfare rights. The article will expose some of the evidential and legal gaps in the assertions made about EU migrants’ socio economic entitlement with a view to providing a more informed, legally accurate appraisal of how the Brexit negotiations could unfold.     

REFLECTIONS ON EU INTERNATIONAL TRADE LAW: AN INTROSPECTIVE VIEW

This article presents three main arguments: First, shared competence exists between the national and supranational levels within the European Union (EU) because EU Member States do not trust the European Commission in the external relations law of the EU. Second, the EU will have greater bargaining power in international negotiations if it speaks in a single voice. Within the EU-27, we have compatible values, overlapping interests, shared goals, as well as economic, social and political ties. Therefore, there is a presumption of collective action in the EU’s external relations. However, EU Member States disagree on many issues before they start negotiations, while trying to define a mission together as partners of the European project. Third, Member States confer specific negotiating powers on the EU only when it is in their own national interest to have a common European position on international negotiations.