‘The referring court asks,in essence’: Is reformulation of preliminary questions by the Court of Justice a decision writing fixture or a decision‐making approach?

The Court of Justice can rephrase or otherwise depart from the questions referred to it by national courts under Article 267 of the Treaty of the Functioning of the European Union. It does so routinely: a practice known as reformulation. Legal literature often argues that reformulation is used to clarify national court questions and bring them within the scope of European Union law. The aim of the present article is to explore this claim systematically. To this end, it compiles a unique dataset consisting of the Orders for Reference, in which the referring courts embed the preliminary questions, and the judgments, in which the Court of Justice communicates the answers. The findings suggest that reformulation is a decision‐making approach rather than a fixture of decision writing. It's main function is to neutralize conflicts and Europeanise disputes. It underlines the Court's power to shape the preliminary ruling procedure and its outcomes.     

The Collective Labour Law of the European Union

Abstract: The collective labour law of the European Union is embedded in a variety of legal measures incorporating principles of collective labour law reflecting national experience. The dynamic of its development has been the spill-over effect of these principles, through their translation into the status of EU law, and their development by decisions of the European Court of Justice. The article outlines a framework of principles which, it is argued, are currently embodied in the collective labour law of the EU. They include collectively bargained labour standards, workers' collective representation, workers' participation, and protection of strikers against dismissal. In addition, there is a parallel principle of collective solidarity emerging in the social security law of the EU. The principle of collective negotiation of labour law introduced by the Protocol and Agreement on Social Policy may be seen as the founding constitutional basis for the collective labour law of the European Union.     

Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?

The number of international law obligations that have binding force on the Union and/or its Member States is sharply increasing. This paper argues that in this light the well‐functioning of the European Union ultimately depends on the protection of the principle of supremacy from law originating outside of the EU legal order. The supremacy of EU law is essential to ensuring that Member States cannot use national rules to justify derogation from EU law. As a matter of principle, international treaties concluded by the Member States rank at the level of ordinary national law within the European legal order and below all forms of European law (both primary and secondary). Article 351 TFEU exceptionally allows Member States to derogate from primary EU law in order to comply with obligations under anterior international agreements. It does not however allow a departure from the principle of supremacy that underlies the European legal order. In Kadi I, the Court of Justice of the European Union stated that Article 351 TFEU, while it permits derogation from primary law, may under no circumstances permit circumvention of the “very foundations” of the EU legal order. This introduces an additional condition that all acts within the sphere of EU law need to comply with a form of “super‐supreme law”. It also strengthened the principle of supremacy and gave the Court of Justice the role of the guardian of the Union's “foundations”. The Court of Justice acted on the necessity of defending the Union as a distinct legal order, retaining the autonomous interpretation of its own law, and ultimately ensuring that the Union can act as an independent actor on the international plane.     

Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration

European economic integration with a minimalist social policy at EU level was in part made possible by strong domestic labour market and social welfare institutions. The main contention of this paper is that EU market liberalisation was embedded within institutions of social citizenship at domestic level, which served to counter the liberalisation of the internal market. But this settlement has been put under strain. In addition to the challenges posed to the sustainability of European welfare states by the global economic crisis, the internal market jurisprudence of the Court of Justice casts doubt on the sustainability of the ‘embedded liberal bargain’. This paper focuses on the role of the Court, in particular in its jurisprudence on the interaction between (EU) market freedoms and (national) labour law, which undermines the ability of states to retain their regulatory autonomy over labour or social welfare law and, arguably, speeds up the unravelling of the ‘embedded liberal bargain’.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) increasingly faces societal value‐conflicts in EU law disputes. For example, in EU copyright law, in the digital age, diverse fundamental values, as well as cultural and societal developments, are at stake. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study. The methodological approach used, critical discourse analysis, is seldom applied in jurisprudential studies, but is well suited for teasing out value‐related aspects of case law. Exploratory research of seminal copyright cases suggests that the CJEU's discourse of the various values seems unnecessarily one‐sided and shallow. A lack of discursiveness in the jurisprudence would diminish the legitimacy of the Court's decisions, and would not offer adequate guidance to national courts or private decision‐makers, to whom the Court at the same time may be leaving more of the task of value reconciliation.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

Forward or Back: The Future of European Integration and the Impossibility of the Status Quo

This article considers how the legal and political order of the EU can cope if the ‘Ever Closer Union’ envisaged by the Treaties ceases to be inevitable. In particular, it focuses on what are the likely consequences if previously successful integration mechanisms such as integration through law (including adventurous pro‐integration interpretation by the Court of Justice of the European Union (CJEU)) and functional integration can no longer successfully push forward the integration process. It considers whether it is possible for the Union to ‘stand still’, that is, to maintain the current level of integration without either moving forward to more intensive integration or engaging in costly and disruptive disintegration. In order to substantiate this claim, the article looks at three areas, the law of citizenship, the Eurozone and the legislative structures of the Union, showing in each case that the neither the current degree of integration nor methods used in recent times to move the integration process forward provide a long term basis for policy.     

Joint Dynamics of Legal and Economic Integration in the European Union

We evaluate the causal linkages between the economic and legal integration process that has characterised the formation of the European Union. Specifically, using the frequency of national references for preliminary rulings sent to the European Court of Justice as a measure of legal integration we investigate its joint dynamics with the expansion of intra-EU trade over the 1960–1998 time period. Our objective is to formally test whether any such linkages exist and the direction within which they have operated.     

Constructing a European Society by Jurisdiction

Abstract:  From a sociological point of view, European integration is specifically a process of transforming deeper structures of solidarity, legal order and justice away from the segmentally differentiated European family of nations and towards an emerging European society. This transformation is the subject matter to be explained (explanandum) in this article by a set of mutually supporting explanatory factors (explanans) with the example of jurisdiction by the European Court of Justice: (1) establishing formal legitimate power of European jurisdiction in order to complement and form the driving force of international labour division: preliminary reference, supremacy and direct effect of European law; (2) establishing a substantial conception of control in the field of legal discourse: free movement and non-discrimination; (3) enforcing a genuinely European legal order against national varieties of law by establishing a dominant European legal community; (4) making transnational sense of legal change by legitimating Europeanised law in terms of advancing justice as equality of opportunity across and within nations, as opposed to equality of results within nations accompanied by inequality of opportunity across nations.     

Independence of the Court of Justice of the European Union: Unchecked Member States power after the Sharpston Affair

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited from the cardinal principle of judicial independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards national courts. Questions have rarely arisen, however, about judicial independence of the CJEU. The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal order? This article reflects on the judicial independence of the CJEU, and offers reflections on how it can be preserved in the future.     

Effet utile and the (re)organisation of national judiciaries: A not so unique institutional response to a uniquely important challenge?

The current repurposing of the principle of effet utile of European Union law can be found in the revolutionary steps taken by the Court of Justice in its application of Article 19 TEU. The implicit goal of this recent body of case-law is to equip national judges with the tools to resist domestic judicial reforms that affect their freedom to adjudicate independently. Considering Simmenthal to Unibet, Associação Sindical dos Juízes Portugueses to the latest case-law relating to the organisation of national judiciaries, this article contends that, while the case-law on judicial independence is unprecedented, the Court of Justice has gone to great lengths to ensure that the developments in EU law precipitated by its rulings are grounded in established doctrine. They follow a line of case-law that builds on the principle of primacy of EU law and the obligation to guarantee the effectiveness of EU law in the domestic legal order. Further, the current trajectory is for Article 19 TEU to form the operational basis of review of any judicially minded reforms, whether they be organisational (Article 19 TEU, together with Article 47 CFREU), limit actually or potentially the freedom for dialogue between national courts and the Court of Justice (Article 19 TEU together with Article 267 TFEU and Article 47 CFREU) or where they reduce the protection of the value of the rule of law (Article 19 TEU, Article 2 TEU, Article 49 TEU and Article 47 CFREU), with potential implications for the effective application in EU law of the principle of mutual trust.     

The General Provisions of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case ) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional—or Supreme—Courts of the Member States of the Union and the European Court of Human Rights).     

Competing Supremacies and Clashing Institutional Rationalities: the Danish Supreme Court's Decision in the Ajos Case and the National Limits of Judicial Cooperation

On 6 December 2016, the Supreme Court of Denmark (SCDK) ruled on the grounds of Ajos case. The ruling concerned the scope of the principle of non‐discrimination on the grounds of age and whether a national court could weigh the principle of non‐discrimination on grounds of age against the principles of legal controversy, as the protection of legitimate expectations. The ruling has caused a great deal of controversy as the SCDK defied clear guidelines from the Court of Justice of the European Union (CJEU) in the ruling. Moreover, the case has been seen by some as an example of a new ‘sovereigntism’ in Danish law that is at odds with the project of European integration through law. This article explains the case from both an EU law and Danish constitutional law perspective. It concludes by providing a set of explanations of the new course of the SCDK in its relationship with the EU.     

European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects

The judgment in Polska Telefonia Cyfrowa sheds light on the legal effects of soft law instruments that the Court of Justice of the European Union (CJEU) will recognise, while distinguishing between their legally binding force and their legal or practical effects. European soft law is now often relied on in national courts, and can have an important impact on the rights and obligations of individuals. However, some of the goals of the Commission are only partly attainable due to the specific legal status of soft law instruments, and the current languages policy of the European Union. Given that soft law was not found to expressly impose obligations on individuals, the Court held that there was no requirement to publish it in all the official languages of the European Union. This has a negative impact on transparency and legal certainty, diminishing the role of soft law instruments in promoting such goals.     

Free movement of law students and lawyers in the EU: a comparison of English,German and Greek legislation

This article focuses on the linked themes of mobility within the European Union for law students and for lawyers. It highlights obstacles to cross-border legal education and legal practice across three Member States: England and Wales, Germany, and Greece. The European legal framework is outlined. The implications of recent case law of the European Court of Justice, on the conditions of access to higher education and financial support, are considered. Three main areas of concern are identified: admission arrangements; student finance; and the professional recognition of qualifications. The article compares the approach of the three Member States in each of these areas and explores conflicts between their domestic law provisions and European Union law. The article concludes by identifying ways in which ‘Europeanisation’ of legal education and the legal profession could be encouraged by facilitating law student mobility and by modernising the law curriculum.     

Reflexive Governance and European Company Law

The use of reflexive forms of governance is growing within the EU, in particular as the open method of coordination (OMC) is applied to a wider range of contexts. Reflexive approaches view diversity of laws and practices across the Member States as the basis for experimentation and mutual learning within the overall process of European integration. Company law, however, seems to be an exception to this trend: recent activity in this area has mostly taken the form of 'hard law' harmonisation through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice concerning freedom of movement, most notably the Centro s case. The deliberations of the European Corporate Governance Forum barely qualify as a 'company law OMC' because of the limited space allowed for 'learning from diversity'; instead, differences in the laws of the Member States are seen, in the discourse of the Forum, as 'distortions of competition'. In the area of labour law, by contrast, a degree of functional convergence and a coordinated raising of standards have recently been achieved by the dovetailing of the OMC with social policy directives. The contrasting experiences of labour law and company law suggest that reflexive or experimentalist approaches to European governance can be effective when they operate so as to complement mechanisms of harmonisation and regulatory competition, rather than being presented as alternatives to them.     

Informal Politics, Formalised Law and the 'Social Deficit' of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval

The judgments of the European Court of Justice (ECJ) of December 2008 in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused quite a heated critical debate. This article seeks to put this debate in constitutional perspectives. In its first part, it reconstructs in legal categories what Fritz W. Scharpf has characterised as a decoupling of economic integration from the various welfare traditions of the Member States. European constitutionalism, it is submitted, is bound to respond to this problématique. The second part develops a perspective within which such a response can be found. That perspective is a supranational European conflict of laws which seeks to realise what the draft Constitutional Treaty had called the 'motto of the union': unitas in pluralitate. Within that framework, the third part analyses two seemingly contradictory trends, namely, first, albeit very briefly, the turn to 'soft' modes of governance in the realm of social policy and then, in much greater detail, the ECJ's 'hard' interpretations of the supremacy of European freedoms and its strict interpretation of pertinent secondary legislation. The conflict-of-laws approach would suggest a greater respect for national autonomy, in particular, in view of the limited EU competences in the field of labour law.     

Eclipse of the Constitution {Europe Nouveau Siècle}

The Court of Justice of the European Union has come to adopt a peculiar mode of balancing, revolving around a set of ‘general principles of law’, which results in key social rights at the core of the postwar constitutional settlement no longer being sheltered from review by reference to supranational economic freedoms. It is submitted that this does not only imply a kind of ideological restyling of European law, as noted in the literature but, more fundamentally, the erosion of Europe's composite constitutional architecture (at once European and national) resulting from playing down social rights qua ‘constitutional essentials’. As the new jurisprudence ‘obscures’ Europe's constitutional constellation, it is submitted that the Court should rule under the constitution and not over it.     

Women's Rights, the European Court, and Supranational Constitutionalism

This analysis examines supranational constitutionalism in the European Union (EU). In particular, the study focuses on the role of the European Court of Justice in the creation of women's rights. I examine the interaction between the Court and member state governments in legal integration, and also the integral role that women's advocates—both individual activists and groups—have played in the development of EU social provisions. The findings suggest that this litigation dynamic can have the effect of fueling the integration process by creating new rights that may empower social actors and EU organizations, with the ultimate effect of diminishing member state government control over the scope and direction of EU law. This study focuses specifically on gender equality law yet provides a general framework for examining the case law in subsequent legal domains, with the purpose of providing a more nuanced understanding of supranational governance and constitutionalism.