In this Issue

The World Trade Organization (WTO) and the European Union (EU) are young, though far-reaching, systems of international integration. The EU is not only a regional trade agreement permissible under WTO law, but also a Member of the WTO on its own right. But where exactly are the points of intersection between WTO and EU law? Do the two systems interact in a cooperative manner, or are they heading towards conflict? Does EU law form part of a wider, WTO-based, ius commune of international trade? Or is it simply the national law of a WTO Member? Although not explicitly raised, this set of questions was underlying the three Banana disputes before the EU courts during the course of 2005: Van Parys, Chiquita and FIAMM. This paper critically examines the EU courts' findings that an EU measure explicitly held to be incompatible with WTO law by the WTO's dispute settlement body is not unlawful as a matter of EU law.

This article examines how conflicts between European Union (EU) law and Bilateral Investment Treaties (BITs) between EU Member States (intra-EU BITs) are to be tacked following the judgment of the Court of Justice of the EU (CJEU) in Achmea (C-284/16). Starting from an analysis of the CJEU’s ruling and its aftermath (Sections II and III respectively), the article argues that conflicts in the interrelation of EU law with inter se agreements, such as intra-EU BITs, are to be approached as normative conflicts between different sub-systems within the broader system of public international law and resolved in favour of EU law. This argument is based on a two-fold premise, analysed in Section IV: first, that EU law does not constitute a ‘new legal order’, outside of and cut off from international law, but rather a ‘self-contained regime’, operating ‘within’ the broader system of international law. Since EU law is treaty law, conflicts in its relationship with (other) inter se agreements are, therefore, to be addressed using the conflict rules of international law. Against this background, the second premise of the article is that the EU Member States have agreed on a special conflict rule to regulate conflicts between EU law and inter se agreements. That rule is the principle of primacy of EU law. Having established the applicable conflict rule, Section V expands on the consequences of its application to the conflict between EU law and investor-state arbitration clauses in intra-EU BITs affirmed by the CJEU in Achmea.

National high courts in the European Union (EU) are constantly challenged: the European Court of Justice (ECJ) claims the authority to declare national standing interpretations invalid should it find them incompatible with its views on EU law. This principle noticeably impairs the formerly undisputed sovereignty of national high courts. In addition, preliminary references empower lower courts to question interpretations established by their national ‘superiors’. Assuming that courts want to protect their own interests, the article presumes that national high courts develop strategies to elude the breach of their standing interpretations. Building on principal-agent theory, the article proposes that national high courts can use the level of (im-) precision in the wording of the ECJ’s judgements to continue applying their own interpretations. The article develops theoretical strategies for national high courts in their struggle for authority.

On 29 November 2011, the European Court of Justice (ECJ) issued its ruling in the National Grid Indus case regarding the compatibility of exit taxes and the freedom of establishment. In this ruling, the ECJ ruled that levying an exit tax as such is not an infringement on the freedom of establishment, but it is not proportional to collect the exit tax immediately. Upon request of the taxpayer, collection has to be deferred until the built-in gains in the assets/liabilities are realized. Although the decision leaves some questions unanswered, the principal issue regarding the compatibility of exit taxes with European Union (EU) law is now resolved. In the past, the European Commission had started infringement cases regarding exit taxation against Member States whose exit tax legislation allegedly was not in line with EU law. Now that the ECJ has ruled in the National Grid Indus case, those Member States should start to amend their legislation to bring it in line with the requirements set out by the ECJ.

Since China and the European Union (EU) announced their decision to negotiate a bilateral investment treaty (BIT) at the 14th China–EU Summit in February 2012,3 the two sides have engaged in two rounds of negotiations.4 As the first standalone BIT that the EU has attempted to negotiate and a treaty between two of the world’s largest economies, the China–EU BIT is bound to occupy a unique place in the world history of BIT negotiations.5 This note attempts to assess the key issues that are likely to be involved in the negotiations of the BIT and its global implications. It concludes that, while there are many tough issues to tackle in the negotiations, a successful China–EU BIT is likely to become a symbol for the emerging ‘Global BIT 2.0’.6 Although there are currently BIT arrangements between China and all but one Member State of the EU, the China–EU BIT negotiations would involve far more work than simply consolidating or streamlining ‘the existing BITs between China and the EU Member States into a single and coherent text’.7 Indeed, it can be expected that the two sides will seize this opportunity to update and upgrade their investment treaty arrangements, taking into account the recent world investment treaty practices in general and those of the two sides in particular.

This chapter explores and assesses the three embodiments of legal consciousness by means of six vignettes so as to test the particular forms of legal consciousness. The vignettes revolve around the issue of supremacy of European Union (EU) law. The personal testimonies proved that confining the discourse on the functioning of national judges as EU law judges to answering the question as to whether judges conform to the principle of supremacy of EU law is not a satisfactory approach, either for seeing how national courts function as decentralised EU courts or for assessing the varieties of legal consciousness. The vignettes show that a large number of judges would base their application of EU law on other factors, such as circumstances of the case, equality of the parties, the nature of the civil law dispute, and the coherence and consistency of the line of jurisprudence.Keywords: civil law; EU courts; European Union (EU) law; legal consciousness; national courts; national judges

Public Interest Norms in the European International Investment Policy: A Shattered Hope?

South African dominance of trade in Africa as well as its position as a regional hegemon was entrenched by the Trade, Development and Cooperation Agreement (TDCA) with the European Union in 1999. South Africa's full-blown integration into the BRICS (Brazil, Russia, India, China, South Africa) formation since 2011 has brought new dynamics, however, as South Africa now has a marked BRICS orientation. Although the European Union (EU) as a bloc is still South Africa's largest trading partner, China has become South Africa's largest single-country trading partner. The question arises as to whether this new found loyalty makes sense in terms of South Africa's regional position and its trade prospects. Against the background of more intra-industry trade with the EU and the new and growing inter-industry trade with the other BRICS economies, South Africa's trade share of African trade has been in relative decline. This study uses an international political economy framework to analyse South African trade hegemony based on the TDCA and the possible effects of a shift towards BRICS. The conclusion is that, although the shift towards BRICS can politically be justified, economically it should not be at the expense of the benefits of the more advantageous relationship with the EU.

Internet regulation in the European Union (EU) is receiving significant attention and criticism in the United States. The European Court of Justice’s (ECJ) judgment in the case Glawischnig-Piesczek v. Facebook Ireland, in which the ECJ found a take-down order against Facebook for defamatory content with global effect permissible under EU law, was closely scrutinized in the United States. These transsystemic debates are valuable but need to be conducted with a thorough understanding of the relevant legal framework and its internal logic. This note aims to provide the context to properly assess the role the ECJ and EU law play in the regulation of online speech. The note argues that the alleged shortcomings of the Glawischnig- Piesczek case are actually the result of a convincing interpretation of the applicable EU law while respecting the prerogatives of the member states in the areas of speech regulation, jurisdiction, and comity. Most of the issues that commentators wanted the ECJ to decide were beyond its reach in this case. The paper argues that EU law’s contribution in the field of online speech regulation should be regarded as a realization of the dangers of illegal online content, resulting in an effective protection of the interests harmed. This implies the rejection of a “whack-a-mole” approach towards illegal online content in favor of more effective ways to protect against the harm caused by illegal online speech. At the same time, the case highlights the necessity to establish a workable theory of jurisdiction and comity in the digital age.

INTRODUCTION In this chapter, it is argued that there is no reason why the duty to make reasonable accommodation for people with disabilities, which exists in European Union (EU) law, could not be extended to include religious people and people with other characteristics which attract protection under antidiscrimination law. However, even if this duty is not extended, it is suggested that something which comes close to such a duty is part of the provision of indirect discrimination. This chapter specifically focuses on the accommodation of religious manifestations and practices, but the duty could be expanded to include all grounds of discrimination covered by EU law (sex, race, religion or belief, age and sexual orientation). It can be said that EU law itself makes certain accommodations in relation to sex, for example, in the regulations protecting pregnant and breast-feeding women, and in relation to age, where it protects younger workers. EXISTING DUTIES OF REASONABLE ACCOMMODATION In EU law, a duty of reasonable accommodation in relation to disabled people is laid down in Article 5 of Directive 2000/78/EC. Employers must ‘take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’. The first sentence of Article 5 provides that reasonable accommodation must be made ‘in order to guarantee compliance with the principle of equal treatment’, so this duty is clearly placed within a discrimination context and a failure to provide accommodation can thus be seen as a form of discrimination. However, this duty applies only in relation to disability and does not extend to any of the other grounds covered by Directive 2000/78/EC (religion or belief, age and sexual orientation), nor does it extend beyond the employment field. In contrast, in the USA, a duty of reasonable accommodation short of ‘undue hardship’ was first laid down in law for cases of discrimination on the ground of religion and then later extended to cases of disability discrimination.

Uncertainty and Legal Disintegration: Evidence From Brexit

This special issue probes the ways in which legal processes and entitlements are mobilized by individual and collective actors on behalf of gender equality, their causes, as well as their consequences for social, political, and policy change in Europe. While far from a unique phenomenon, such processes are distinct in Europe: they largely take place in the frame of multilevel European Union (EU) governance, defined by a multiplicity of legal and judicial mechanisms coexisting alongside supranational institutions and a sui generis system of law. From the 1970s onwards, EU law has expanded the arsenal of rights to gender equality that can be claimed before national courts and the Court of Justice of the EU (CJEU). Over the past ten years, the adoption of anti-discrimination legislation by the EU has further strengthened the relevant body of legal norms. It has also expanded the (quasi-) judicial and non-judicial fora where gender equality claims can be advanced in the multilevel European system. In this changing context, individuals and other actors have increasingly challenged state laws and policies in court for compatibility with gender equality norms enshrined in national constitutional and EU law.

The EU Response to COVID-19: From Reactive Policies to Strategic Decision-Making.

European integration has been strongly influenced by the case law of the European Union (EU) Court of Justice, not by chance considered the “Master of Community Law”. New fields of EU law, such as banking union law, are confirming the role of European judges as the architects of Union law. Despite the number of regulations provided for the banking union, unparalleled in any other area of the law, the jurisprudence of the European Court of Justice (ECJ) and of the General Court has resulted decisive for grounding the new European Banking Union (EBU) and giving it internal coherency and consistency within the institutional EU system. The economic relevance of the EBU litigation indicates that European judges will maintain a crucial role in the future as well for guaranteeing both the general interests of the Union and the rights of the interested parties.

The present article addresses the issue of the loan of organs between international organizations, focusing on the most recent practice of the European Union (EU) and, in particular, on the loan of the Commission and the European Central Bank to the European Stability Mechanism (ESM). The hypothesis is that the loan of the two EU institutions to the ESM bridges two autonomous international organizations and that, for this reason, the EU can indirectly influence the activities of the ESM. The bridge is built on normative grounds, as EU institutions are bound to respect EU law even when they are borrowed by other international organizations, as the Court of Justice of the EU (CJEU) held in the Pringle case. In a more recent case, the Ledra Advertising, the same Court specified that the duty to respect EU law extends also to the EU Charter of Fundamental Rights. This last consideration might have a positive impact on the protection of human rights in the context of austerity measures adopted by the ESM. Moreover, it might give to the EU an important tool for the enhancement of human rights protection in the relations with other international organizations. In this regard, the most recent practice of the EU reveals at the same time promises and perils.