Mandating – a likely scrutiny instrument for regional parliaments in EU affairs?

ABSTRACT

Scrutinising governments lies at the heart of parliamentary activities in EU affairs. This applies to national as well as to regional parliaments, most of which possess a toolbox of scrutiny instruments, including the power to mandate, allowing for the strongest form of scrutiny vis-à-vis governments. The article investigates the existence of mandating tools in the 70 regional parliaments equipped with legislative competences in Austria, Belgium, Germany, Italy, Spain and the UK, whose role in EU affairs has been strengthened by stipulations in the Lisbon Treaty. It is argued that mandating tools are, first, not widely used; second, they are more commonly applied in cases where national parliaments act as ‘policy shapers’ – enabling policy transfer – and if meso-level factors involving territorial politics create further incentives. In sum, the regional parliaments in six member states are still trying to find a place in the maturing EU multi-level parliamentary system.     

Conclusion: regional parliaments – a distinct role in the EU?

ABSTRACT

Regional parliaments can shape EU policy-making via a range of domestic and European channels. In the context of a renewed interest in the subnational level, this article aims to address three core questions: have regional parliaments really been empowered by the early warning system provisions? Which factors explain differences in strength and mobilisation? Finally, what kind of a role do regional parliaments play in EU policy-making today, now that they have had several years to react to the trend towards multilevel parliamentarism? The authors argue that regional parliaments do indeed have the potential to contribute a distinct perspective to EU policy-making, even if their current level of activity is still low. Their distinctive territorial focus sets them apart from national parliaments. Their level of activity still varies greatly between parliaments depending on a number of factors.     

Polluting Environment, Polluting Constitution: Is a 'Polluted' Constitution Worse than a Polluted Environment?

The Indian Supreme Court has been praised as one of the mostsocially active courts in the world, especially so in the environmentalfield. Yet it is arguable that many of the benefits claimedfor judicial involvement are far from real. Three phases ofacti­vism are identified. In the 1970s, the Court developedthe concept of environmental rights based on ensuring that thedirective principles of state policy and the funda­mentalright to life contained the Constitution worked in mutual support.This was followed by a period when the Court extended liabilityprinciples. The most recent and most controversial phase hasinvolved the Court increasingly acting in an exec­utivefunction and effectively both making and implementing policies.The Court’s enthusiasm in environmental matters has nowdented India’s institutional balance. By being preparedto judicialise all problems of life into problems of law, theCourt has undermined the strength of citizens to engage collectivelywith institutions of the State—the Court should now withdrawfrom its self-imposed alchemist role.     

A review of telecom markets in the EU: What did the European Commission learn or not from the past?

The EU telecom regulation relies on a market-by-market sunset approach. In order to facilitate the market review of national regulatory authorities, the European Commission has offered two successive sets of recommended markets susceptible to ex ante regulation. The inclusion or exclusion of a recommended telecom market is analyzed on its competition conditions across the EU. Beginning in 2014 the European Commission published the draft third Market Recommendation. This article aims to give a critical evaluation of those recommended markets by surveying the competition situations on every telecom market in the EU Member States. It observes that while the drafted Third Recommendation makes a reasonable assessment for most telecom markets, it may not have appropriately addressed markets such as retail fixed access, wholesale call origination, wholesale fixed and mobile call termination, wholesale high-quality access, and wholesale broadcasting transmission.     

Home: A Vehicle for Resistance? Exploring Emancipatory Entanglements of ‘Vehicle Dwelling’ in a Changing Policy Context

This article begins with a reflection on Phil Thomas’ work, as well as on the way in which the Journal of Law and Society has pioneered scholarship in this field. Drawing on my own experiences as a researcher and campaigner, and my ‘insider’ status as a van dweller, I articulate why many have sought alternative modes of living, reflecting on ideas about freedom and anarchism, the importance of ‘home’, cultural preference, and escaping the housing crisis. I note that Wales and other European states, such as Portugal, provide a much warmer welcome and space for diverse Travellers; some are already planning their escape routes before the consequences of Brexit and new trespass legislation unfold. In an already hostile and rapidly changing context, it appears that the ontological security of vehicle dwellers is increasingly under threat. As well as giving a voice to these communities, the article also represents a much-needed call to action.     

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.     

Electricity Market Restructuring and Energy Contracts: A Critical Note on the EU Commission’s NEA Decision

As highlighted in the economic literature, contracts are crucial policy instruments to organize and manage restructured electricity markets. In the early 90’s, during the restructuring of the electricity market in UK, the three main Scottish electricity generators stipulated a long-term, “take-or-pay” contract, the Nuclear Energy Agreement, which contained provisions for the trade of wholesale electricity in Scotland.The European Commission scrutinized such contract in order to derive the congruity of the agreement to European laws. Whilst the NEA was awarded an exemption under Article 85, paragraph 3 of the EU Treaty, the Commission recognized the inner anticompetitive content and potential effects of the contract.In this paper, we criticize the Commission NEA decision and economic reasoning and provide an alternative reading and analytical approach, which lead to opposite results and conclusions (the NEA contract is not anticompetitive and it enhances efficiency in competitive electricity markets). Given that the restructuring process in the EU electricity market is still in fieri, we select the NEA contract as a benchmark-case, in order to provide an alternative reading and a case-study for eventual, future energy contracts administration and authority decisions.JEL K, K2, K230     

Does the Centrality of Values in the Lisbon Treaty Promise More Than It Can Actually Offer? EU Biometrics Policy as a Case Study

The Treaty of Lisbon introduced the term ‘values’ in EU primary law. This development coincided with the granting to the Charter of Fundamental Rights of the same legal force as the Treaties. The question remains, though, how the prominence of values is actually shaping EU law and policy. This paper critically appraises the ways that certain values translated into the Charter's principles and rights are being construed under the EU policy for biometrics, a security technology whose use is being actively promoted by the EU. We conclude that the balancing of pertinent values, namely security and liberty, owe to a great deal to political and economic considerations that shape EU politics. Research priorities, combined with those of EU security policy, in particular, the fight against terrorism, then tend to prevail over ethically or morally based legal claims in respect of biometrics.     

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.     

The uncertain future of data retention laws in the EU: Is a legislative reset possible?

The article discusses the CJEU's most important case law, including interpretations presented in recent cases relating to data retention for both national security purposes (Privacy International, La Quadrature du Net) and the fight against serious crime (H.K). The analysis is a starting point for discussing the draft e-Privacy Regulation, in particular a controversial proposal introduced by the EU Council that may limit the Court's jurisdiction in cases involving data retention rules that cover state security.Negotiated over the past five years, the draft e-Privacy Regulation fleshes out EU data protection rules governing electronic communication services. As a result, the way in which obligations under the Regulation are defined is critical in setting a standard for retention rules consistent with CJEU case law for decades to come. At the same time, succumbing to pressure from Member States may have the opposite result – the emergence of new ambiguities concerning not only the admissibility of data retention but also the competence of EU institutions to regulate this area of the telecommunications sector.     

Restricting the import of ‘emission credits’ in the EU: a power struggle between states and institutions

This article examines the development of a cap on the use of so-called ‘project credits’ in the EU emissions trading scheme. It investigates how the issue of such a limit was addressed in the negotiations of the Linking Directive, and how it has been dealt with in the later implementation of this directive. The article applies two explanatory approaches: one based on intergovernmentalist theory, assuming that the cap reflected the preferences of the EU Member States; and one based on the multi-level governance model, assuming that the cap expressed the preferences of EU institutions rather than Member States. What is found is a two-stage development: during the negotiations of the Linking Directive, Member States managed to secure a no-cap solution allowing extensive use of the project credits. In the later implementation phase, however, when the emissions trading scheme was up and running and a certain legitimacy for the system had been established, the Commission managed to ‘regain control’ by bringing back a cap. Thus, the project credit cap—and by that, the very nature of the EU emissions trading scheme—has been the subject of a continuing power struggle within the EU—and different theoretical perspectives explain different stages of this process.     

Amitav Ghosh: The Nutmeg’s Curse: Parables for a Planet in Crisis

Jindal Global Law Review -     

Envisaging the Post-Brexit Landscape: An Articulation of the Likely Changes to the EU–UK Competition Policy Relationship

In the light of the outcome of the 23rd June 2016 UK referendum to leave the European Union and the May government’s consequent approach to Brexit, this paper explores the likely changes that these will bring to a key EU–UK relationship, the competition policy relationship. It is suggested that changes are likely not only in public enforcement and private actions but also in the need for a new competition cooperation architecture between the EU and the UK. In order to appreciate how the competition relationship is likely to change after Brexit, an understanding of the current architecture in respect of the said areas is necessary and thus outlined early in the paper. Thereafter, it is argued that, post the implementation period, as the UK will no longer come under the direct jurisdiction of the European Court of Justice or indeed be a member of the Single European Market, a considerable loosening or separation of the strands that shape the current EU–UK competition relationship will occur. This unwinding of the currently intertwined EU and UK competition regimes will affect both public enforcement and private actions, thereby opening up the possibility of further regulatory divergence, unless consciously checked. Moreover, as the separation will see the Commission’s jurisdictional remit no longer include the UK, the domain will become the sole regulatory concern of UK institutions, particularly the Competition and Markets Authority. This will lead to dual regulatory capture, often of significant and complex antitrust and merger cases, given the overlapping nature of EU and UK markets. Clearly, this necessitates the UK regulator having the appropriate staffing to vet such cases, as it moves from essentially a regional player to one on a par with the Commission and regulators in the USA and China. In fact, the dual capture of such cases reinforces the importance of effective cooperation between the EU and UK regulators. However, given that the current competition cooperation relationship will end at the conclusion of the implementation period, the paper articulates a likely new EU–UK competition cooperation architecture, reflecting the fact that the UK would be outside the EU, but still enabling close, effective cooperation. Of course, and echoing the EU, it is also in the UK’s interest to agree similar competition cooperation bilaterals with key non-EU regulators. Yet, because this will take time, and because cooperation can indeed fail, the UK, like the EU, must ensure its competition instruments have the necessary extra-territorial reach.     

Functioning Well in a Dysfunctional System: Recommendations for Clinical Psychologists in Workers’ Compensation Settings

Clinical psychologists working in workers’ compensation (WC) settings face unique and complex professional and ethical challenges. The present paper provides recommendations to clinical psychologists for avoiding the largely unintentional harm to clients and unethical practices that can occur within the realm of WC. Although the psychologists working in WC settings more often than not act in ethical ways grounded in years of academic and professional training, the unique tasks required of psychologists in WC settings (e.g., rating injuries; determinations of causality) and the pressures inherent in the system can potentially lead even the most well-intentioned mental health professionals into unsavory ethical and professional scenarios. The authors examine the (un)witting contributions of psychologists to the current dysfunction in the WC system and provide recommendations for traversing the oft-serpentine terrain of mental health evaluations and treatment in WC settings. Specifically, the authors discuss, among the many possible potential pitfalls, (1) bringing personal bias into the evaluative setting, (2) engaging in unsavory advertising practices, (3) cherry-picking and other missteps in record review, (4) engaging in cursory consenting, (5) failure to engage in evidence-based assessment and report writing, and (6) role challenges.