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The Interpretive Function of the CJEU and the Interrelationship of EU and National Levels of Consumer Protection

Abstract

This paper analyses the ways in which the Unfair Contract Terms and Unfair Commercial Practices Directives try to steer a path between imposing a common European standard and allowing national variation. The open wording of the norms and safeguard clauses in both directives allows room for their flexible application. The differentiated role between the Court of Justice, as the interpreter of European law, and the national courts, as the party that applies it, provides a release valve to prevent any direct clashes and allows a subtle way for national perspectives to be reflected.

The analysis finds that, irrespective of the underlying level of harmonisation, and with the backing of the European legislator’s intention of ensuring a high level of consumer protection, the CJEU is gradually painting the average European consumer with more realistic features. Here, the case law of the CJEU fulfils a bridging function between the labelling requirements in the Foodstuff Regulation, the transparency requirements in the Unfair Contract Terms Directive and the informed decision requirements in the Unfair Commercial Practices Directive. In these three domains the CJEU recognises that the level of customer attention may be suboptimal, even in the presence of comprehensive and correct information.

The CJEU’s approach contributes to more convergence in consumer protection throughout the EU. Yet, in terms of legitimacy, it must be noted that in all cases the CJEU has maintained a clear distinction between interpretation and application. The particular constitutional legal order in which the CJEU operates only allows for a process whereby the contours of a more coherent European consumer protection policy are gradually revealed. In the absence of sufficient legislative guidance at the European and national levels, national courts may be increasingly informed by the case law of the CJEU in an effort to establish clearly desirable common expectations. Those who believe that, in practice, uniformity can be achieved overnight by simply adopting a common maximum norm appear over-optimistic.

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Paradigms for EU Law and the Limits of Delegation. The Case of EU Agencies

Abstract

This article questions the idea that the EU is a pure regulatory power based on supranational delegation of competence from the Member States. It claims the insufficiency of this single paradigm to explain the developments of EU law and the need to integrate it with recognition of the constitutional foundations of EU law.

The analysis demonstrates this by focusing on a specific case study of institutional design in the internal market integration: the delegation of powers to EU agencies. By recognising the judicial evolution of the so-called Meroni doctrine concerning the non-delegation of powers to EU agencies, the article unveils that, legally speaking, the enhancement of EU agencies’ powers takes place in the autonomous constitutional framework of the EU legal order.

This constitutional foundation of EU law shall therefore complement the supranational delegation paradigm. Only in this wider approach can the legitimacy of EU agencies’ powers be framed and accommodated in the composite nature of the EU as a Union of Member States. On these grounds, the final remarks highlight the need for a more comprehensive paradigm for EU law that can explain these different aspects of EU law under a common approach based on a wider public law discourse.

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Reflections on the ‘Administrative, Not Constitutional’ Character of EU Law in Times of Crisis

Abstract

As is broadly recognized, the realm of administrative power greatly expanded over the course the twentieth century (particularly after 1945). This essay argues that this expansion, along with differential conceptions of legitimacy deeply bound up with it, are crucial to understanding not just the modern administrative state but also the nature of EU governance and the law governing its operation. Despite a dominant paradigm that seeks to understand EU governance in autonomously democratic and constitutional terms, the legitimacy of integration as a whole has remained primarily ‘administrative, not constitutional’. The EU’s normative power, like all power of an ultimately administrative character, finds its legitimacy primarily in legal, technocratic and functional claims. This is not to deny that European integration involves ‘politics’ or has profound ‘constitutional’ implications for its member states or citizens. The ‘administrative, not constitutional’ paradigm is meant only to stress that the ultimate grounding of EU rulemaking, enforcement, and adjudication comes closer to the sort of administrative legitimacy that is mediated through national executives, national courts, and national parliaments to a much greater extent than the dominant paradigm supposes. This is the reality that the ‘administrative, not constitutional’ paradigm on EU law has always sought to emphasize, and it is one that is particularly pertinent to the integration process in times of crisis. It is unsurprising, in these circumstances, that the public law of European integration has continually resorted to mechanisms of nationally mediated legitimacy in order to ‘borrow’ legitimacy from the national level. Unless and until Europeans begin to experience democracy and constitutionalism in supranational terms, the ‘administrative, not constitutional’ paradigm suggests that the EU’s judicial doctrines must be adjusted. The purpose should be to address the persistent disconnect between supranational regulatory power and its robust sources of democratic and constitutional legitimacy on the national level.

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The Single Market and Synchronized Mechanisms for the Exercise of Administrative Functions: Converging Pathways or New Pathways for Integration? The Case of the European Banking Union

Abstract

The EBU represents a clear investment in administrative integration with clear implications for the constitutional features of the EU. This paper aims to give an analysis of the administrative arrangements, through which the functions of supervision and resolution are affecting the single financial market. This case study is very interesting because these functions represent a genuine novelty in the history of financial integration since they are pre-ordained to a specific public interest: financial stability. Particularly, they cause a shift in the decision gradient from the technical to the political, as market integrity is less and less the key interest compared to financial stability. However, this wider discretionary power is not adequately counteracted by checks and balances in favour of accountability. As a result, the EBU makes a new contribution to the well-known ‘fragmentation of the executive power’ of the EU by introducing a new governance tool positioned between the Communitarian and Intergovernmental Method, but its development is still full of uncertainties given that constitutional equilibrium is far from being definitively reached.

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The Theory of EU Constitutional Pluralism: A Crisis in a Crisis?

Abstract

The paper deals with the validity of constitutional pluralism as a constitutional theory for the European Union and a paradigm for the understanding of EU law in the current times of crisis. It reconstructs the way in which constitutional pluralism came to the fore, the different ways in which the theory was presented, and considers historical criticism it has faced. It then looks at the anomalies that, allegedly, cannot be explained today by constitutional pluralism as a paradigm, linked to the current economic and political crises in the Union. The reconstruction of the debate is complemented with reflections on both the descriptive and normative validity of EU constitutional pluralism’s claims.

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“Top-down” vs. “Bottom-up”: A Dichotomy of Paradigms for the Legitimation of Public Power in the EU

Abstract

Public power has been justified by resorting to two different kinds of legitimation: one coming from above, the other emerging from the governed. While legitimation “from above” implies that those who are vested with executive power are qualified in their function because of their allegedly higher competences, “bottom-up” legitimacy always presupposes that only citizens can properly decide on their destiny. After giving a brief account of how both legitimation strategies have developed in the history of political ideas, attention is focused on the theories regarding the legitimacy of public power in the European Union. Indeed, both strands of legitimation of public power are represented here with original proposals, according to the specificity of the supranational condition. But even more interesting is that the research into the characteristics of supranational integration has been one of the most significant fields in which the legitimation “from above” has reappeared in Western thought after a rather long period of marginality, now taking the shape of a technocratic justification. In the main section of the article, the reasons in favour of a democratic “bottom-up” legitimation of the European public power are analyzed first, then those which recur to the so-called “output legitimacy” – in other words to technocratic arguments. The last section of the contribution is dedicated to an overall assessment of the different positions.

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Learning by Doing: The EU’s Transformative Power and Conflicts in the Western Balkans

Abstract

The paper analyzes the European Community/ European Union experience in the Western Balkans in the period from 1990 onwards in different context in order to assess different mechanisms which the European Union has gained with building the Common Foreign and Security Policy and within the Enlargement Policy in the process of conflict prevention and conflict resolution. Additionally, the paper makes an assessment of the EU’s involvement in the conflict prevention and conflict resolution in the Balkans after the Stabilization and Association Process was launched in 1999. The authors argue that in the case of the military conflicts in the former Yugoslavia, when the European Community was confronted with serious and hard security issues at the very beginning of creating its Common Foreign and Security Policy and in a period of time when the region was not part of the enlargement process, the Community and the Union afterwards proved to be extremely ineffective. In the second part, through three case studies, the paper demonstrate that with the combined use of CFSP mechanisms and SAP, positive examples of the EU acting as a provider of peaceful dispute settlement in the Western Balkans have been established.

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Olympic Diplomacy and the Emerging States: Striving for Influence in the Multipolar World

Abstract

The world of sports is a reflection of the world of politics. It is becoming increasingly multipolar with the emerging states hosting mega sporting events. Firstly, the article problematizes the concept of multipolarity and, secondly, globalisation by questioning whether the Olympic Games reinforce national identities and promote national interests by using Olympic diplomacy as a soft power tool. In doing so, the article explores the correlation between the changes in international affairs and the hosting of and participation at the Olympic Games by emerging states such as Brazil, China and Russia. The analysis distinguishes globalisation from the role of the nation-state, by highlighting the evident differences between emerging states in terms of hosting the Games, but also takes into consideration geopolitical and geo-economic parameters.

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Preserving ‘Great Power Status’: The Complex Case of the British Intervention in the Falklands (1982)

Abstract

This article aims to examine the importance of an often overlooked argument when it comes to explaining why great powers go to war against a weaker actor. This argument involves great power status considerations. The article argues that states care deeply about their status, especially states which are current and former great powers, and would opt to go to war to preserve this status even if the political and military consequences of such intervention are negligible to objective observers. To illustrate this argument, I will be looking at why the British decided to reestablish their sovereignty over the Falklands in 1982. The empirical part of the analysis is based on formerly secret documents declassified by the British government. This qualitative primary analysis of British documents provides new insights about the crisis and suggests that status considerations played a large role in the British decision to re-conquer the Falklands.

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The Quo Vadis of Democratization in Post-Egypt Arab Spring

Abstract

This paper aims at examining how democratization in post-uprising Egypt remains flawed and the reasons for this failure. As a background, democratization in post-Arab Spring Egypt has collapsed and it seems now merely an illusion. The situation worsened since Egypt’s democratically elected President Morsi was expelled from office through a coup, following mass protests demanding Morsi’s discharge. Egypt’s democratization is hard to achieve due to the shadow of the Pharaoh in Egypt, that is, entrenched ruling elites; Egypt’s democratization process can never succeed while Egypt’s old ruling elites are reluctant to allow this to happen.

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