Croatian Yearbook of European Law & Policy最新文献

{"title":"National Courts and European Soft Law: Is Grimaldi Still Good Law?","authors":"Emilia Korkea‐aho","doi":"10.1093/YEL/YEY008","DOIUrl":"https://doi.org/10.1093/YEL/YEY008","url":null,"abstract":"This article discusses the Grimaldi obligation, that is, the duty of national courts to take European soft law into account when deciding cases, in view of the evidence from the longitudinal study of the Grimaldi jurisprudence, it is suggested that although the doctrine has not changed, the world around it has. While the ECJ has not reversed the precedent set by Grimaldi, nearly three decadades of EU soft law making have eroded the foundations of the doctrine to the extent that the obligation has become heavily nuanced. First, to the extent that the soft law measure is issued by an EU institution and its development is foreseen in primary or secondary law, Member State courts can depart from the interpretation offerd in the measure only if they can provide detailed and substantively valid reasons why it should not apply. Secondly, if the soft law instrument is free-standing, that I derived from primary or secondary law, or where non-binding guidance is given by actors other than the institutions, the Member State court has more leeway to decide whether or not to take non-binding guidance into account. The third noteworthy feature that emerges from the analysed jurisprudence is that Member State courts have become more proactive in challenging EU soft law, and, insofar as it is an act of the EU institution, the Court is cautiously accepting validity challenges posed by Member State courts in the preliminary reference procedure. This suggests that if a new or revised Grimaldi is to be found, it should be through judicial dialogue.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"37 1","pages":"470-495"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78718462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating prices in the European Union","authors":"N. Dunne","doi":"10.1093/YEL/YEY002","DOIUrl":"https://doi.org/10.1093/YEL/YEY002","url":null,"abstract":"EnglishEstablishing open and undistorted competition within the internal market is a primary goal of the EU legal framework. Price controls, by contrast, are among the clearest derogations from this overarching objective. Yet much price regulation continues to occur within the internal market, the legal treatment of which is recognized to raise exceptional issues in the context of both negative integration. This article explores the approaches within the EU legal framework to price regulation, broadly construed. Following a theoretical inquiry of the institutional and ideological challenges posed, a range of regulatory circumstances is considered: from competition enforcement, to the free movement rules, to examples of direct regulation through EU law. A tentative explanation for the distinctive treatment of price regulation is then advanced, premised upon the axiomatic role of the price formative mechanism in motivating the entrepeneurial impulses which underpin the internal market. The aim is to contribute to a more nuanced understanding of the challenges facing pursuit of'open undisorted competition' within a modern social market economy Englishcompetition law, price regulation, European Union law, internal market","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"28 1","pages":"344-394"},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83924570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Quest for Reasonable Retail Energy Prices in Europe: Positive and Normative Dimensions","authors":"Despoina Mantzari","doi":"10.1093/YEL/YEX016","DOIUrl":"https://doi.org/10.1093/YEL/YEX016","url":null,"abstract":"Public opinion in various EU Member States increasingly perceives energy prices as unreasonable. Primarily owing to distributional concerns, state interference with the liberalized retail energy market is ever-present across many EU Member States, despite its implications for the development of competitive (national and EU) energy markets. Rather than solely engaging with the conditions of state intervention as such, this article takes a step back and argues that an appreciation of what constitutes a reasonable price for energy supply is a necessary prerequisite in determining the relevance, scope, and conditions of state intervention in retail energy prices. In the absence of a definition of the concept in secondary legislation, it offers a novel conceptual framework centred on the contextual interpretation of ‘a reasonable price for energy supply’. This article offers two understandings of reasonableness: one underpinned by the principle of market competition and the other understood as affordability. It elaborates on the different set of conditions and criteria against which they are judged and it explains how these have informed various instruments enshrined in the energy liberalization directives for achieving reasonable prices for end-consumers. These range from consumer empowerment measures to more direct consumer protection measures informed by affordability concerns. After providing a taxonomy of the latter instruments, it examines their respective advantages and disadvantages by focusing on how these are perceived by the EU framework. Its broader aim is to contribute to a more nuanced understanding of what is meant by a ‘reasonable retail energy price’ within the context of national and EU competitive retail energy markets and explore how the resulting tension between the two understandings of reasonableness is accommodated in the broader EU constitutional and institutional context.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"7 1","pages":"599-627"},"PeriodicalIF":0.4,"publicationDate":"2017-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78886726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union","authors":"G. Phillipson","doi":"10.1093/YEL/YEX012","DOIUrl":"https://doi.org/10.1093/YEL/YEX012","url":null,"abstract":"This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"18 1","pages":"46-93"},"PeriodicalIF":0.4,"publicationDate":"2017-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84822608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Several Internal Markets","authors":"S. Weatherill","doi":"10.1093/YEL/YEX007","DOIUrl":"https://doi.org/10.1093/YEL/YEX007","url":null,"abstract":"The 'four freedoms' in EU law are locked together by Article 26 TFEU, which declares that the internal market ‘shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. But those freedoms are divisible. More than that: they are divided. In truth the EU has several internal markets. Its market for goods is different from its market for services and different again from its market for people. I have written elsewhere of the ambiguous character of the internal market (Weatherill, The Internal Market as a Legal Concept (OUP, 2016): this paper is more concerned to focus on the points of heterogeneity that attend the law of the internal market. \u0000It shows (in Section III) that the Court of Justice has refused to adopt an overtly common approach to the determination of when a measure that applies equally in law and in fact is properly placed beyond the reach of the free movement provisions – the Keck conundrum – and it has adopted an inflated reading of the incursion of EU law into practices that do not arise in the context of an obstruction of cross-border mobility in the particular case of dependent children of third country nationals. Moreover the personal scope of the free movement provisions is not aligned: those concerning goods do not bind private parties, those concerning persons and services do. Section IV explores the pattern of legislative harmonisation, and it demonstrates that across the many sectors that have been the subject of harmonisation the precise patterns according to which primary and secondary law combine reveal myriad different models. Moreover the acquis is marked by a great many instances of sanctioned variation of many different types – geographical, material, personal, temporal and so on. Section V looks to legislative activity beyond the programme of harmonisation. It reveals a number of legal bases which are explicitly tied to the internal market, most of which are simply sector-specific iterations of the basic assumptions associated with market-making harmonisation, but it finds other legal bases such as social policy and cohesion which are not declared to operate in the service of the internal market yet which plainly have some (contested) connection to it. This shows that the EU’s internal market, as a bargain or a package deal, is surprisingly lacking in precise legal definition or boundary. Section VI examines provisions which place off limits activities that are apt to harm the internal market but finds that this may have little relevance in practice: the treatment of enhanced co-operation by the legislative institutions and by the Court is emblematic. The internal market also has a presence beyond the EU’s external frontiers. The EEA, examined in Section VII and sometimes – though without legal foundation – termed the ‘single market’, takes on most, though not all, of the baggage of the internal m","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"14 1","pages":"125-178"},"PeriodicalIF":0.4,"publicationDate":"2017-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91108897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Legal Framework for SEP Disputes in the EU Post-Huawei: Whither Harmonization?","authors":"N. Zingales","doi":"10.1093/YEL/YEX018","DOIUrl":"https://doi.org/10.1093/YEL/YEX018","url":null,"abstract":"This article revisits the antitrust treatment of unilateral conduct in Standard Essential Patent (SEP) disputes in the EU, with particular focus on the landmark CJEU judgment in Huawei v ZTE and the way it has affected subsequent developments before national courts. It explains that while the court in Huawei significantly improved legal certainty both for SEP holders and their potential licensees, it also left open a number of crucial questions affecting everyday licensing practice. First, it is not entirely clear whether the liability of an SEP holder presupposes leveraging by a vertically integrated firm or can also arise in purely vertical or horizontal relationships. Secondly, the safe harbour procedure formu- lated in the judgment begs important questions concerning burden of proof and portfolio licensing, which have given rise to divergent interpretations. It follows that the space remains wide open for competing national and even regional approaches to the rights and obligations of SEP holders, calling for further European harmonization—be it judicially, legislatively, or administratively through the European Commission. In support of the latter measures, the article illustrates the limited remit of EU private international law rules in preventing the forum shopping which is likely to unfold as a result of a fragmented landscape for the resolution of SEP disputes, and the limited ability of the Unified Patent Court to ameliorate the associated fragmentation a.nd coordination problems.","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"95 1","pages":"628-682"},"PeriodicalIF":0.4,"publicationDate":"2017-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74670160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Making markets work in the public interest: Combating hazardous alcohol consumption through minimum pricing rules in Scotland","authors":"A. Andreangeli","doi":"10.1093/yel/yex004","DOIUrl":"https://doi.org/10.1093/yel/yex004","url":null,"abstract":"Starting from the example offered by the 2015 SWA preliminary ruling, this paper will examine the current approaches to price control rules and then critique them against the wider background of the principles governing, respectively, Union action in the field of internal market policy and member states' intervention directed at safeguarding high levels of public health. It will be argued that given the renewed commitment to respecting the principle of conferral, resulting from the Treaty of Lisbon, it may be time for a reassessment of the scope of Article 34 TFEU so that the member states can continue exercising the legitimate regulatory powers that they enjoy in this area, albeit within limits dictated by the demands of a well-functioning internal market. Additional Information:","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"71 1","pages":"1-31"},"PeriodicalIF":0.4,"publicationDate":"2017-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83962271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Humanitarian Law Principle of Independence Versus the European Union’s Missionary Principle","authors":"M. Broberg","doi":"10.1093/yel/yex002","DOIUrl":"https://doi.org/10.1093/yel/yex002","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"37 1","pages":"810-828"},"PeriodicalIF":0.4,"publicationDate":"2017-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75493017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The elusive influence of the Advocate General on the Court of Justice","authors":"U. Šadl, Suvi Sankari","doi":"10.1093/yel/yex001","DOIUrl":"https://doi.org/10.1093/yel/yex001","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"1 1","pages":"1-21"},"PeriodicalIF":0.4,"publicationDate":"2017-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90689149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Regulating criminal finance in the EU in the light of the international instruments","authors":"L. Borlini","doi":"10.1093/yel/yew030","DOIUrl":"https://doi.org/10.1093/yel/yew030","url":null,"abstract":"","PeriodicalId":41752,"journal":{"name":"Croatian Yearbook of European Law & Policy","volume":"71 1","pages":"553-598"},"PeriodicalIF":0.4,"publicationDate":"2017-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77752863","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}