Weekend Edition Nº167 by eulawlive

Nº167

DECEMBER 16

2023

YOUNG FIDE SEMINAR 2023 FIDE CONGRESS

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Introduction: Reflections on the Young FIDE Seminar 2023 The Youg FIDE Board and the Young Rapporteurs Maria Fartunova-Michel, Ivan Stoynev, Cecilia Rizcallah, Agapia Kirilova and Lorenzo Cecchetti

Discretionary power – a revered instrument in the toolbox of autocrats Jonas Bornemann

Squaring the Circle: The Quest for an Open, Sustainable and Assertive Trade Policy and the EU-Mercosur Trade Agreement Piotr Krajewski

Opportunity or Threat to Cohesion? Brain Drain and Young People’s Geographical Mobility in the EU Marc Steiert

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Introduction:

Reflections on the Young FIDE Seminar 2023 The Youg FIDE Board and the Young Rapporteurs Maria Fartunova-Michel, Ivan Stoynev,1 Cecilia Rizcallah,2 Agapia Kirilova3 and Lorenzo Cecchetti4 On the first day of the XXVV FIDE Congress (Wednesday 31 May 2023), The University of Sofia in tight cooperation with Centre européen universitaire and IRENEE (Laboratoire de droit public et science politique, University of Lorraine, Nancy, France) hosted the Young FIDE Seminar in Sofia (Bulgaria). The Seminar was opened by Lars Bay Larsen, Vice-President of the Court of Justice of the European Union. In his welcome addresses, he focused on the legal challenges emerging in relation with the mutual trust and the respect of rule of law and European values, the new geopolitical dimension of the EU competition and trade policies and the reinforcement of the social aspect of European Union. Young scholars, PhD students and young practitioners were invited to submit original papers dealing with one of the three main topics of the FIDE Congress: (1) Mutual trust, mutual recognition and rule of law; (2) The new geopolitical dimension of the EU Competition and Trade policies and (3) The European Social Law. This provided the basis for stimulating discussions together with the audience, Young Rapporteurs and other expert panelists. The concluding plenary session was chaired by María Lourdes Arastey Sahún, Judge, President of the VII chamber of the Court of Justice of the EU. During this concluding session the Young rapporteurs reflected on the presentations and discussions in the different parallel sessions. In the following, the three Young Rapporteurs – Cecilia Rizcallah, Agapia Kirilova, Lorenzo Cecchetti – share their insights from the parallel sessions on the three FIDE topics. The additional fourth contributions of this Weekend Edition are written by EU lawyers who presented their papers during the Young FIDE Seminar: Jonas Bornemann, Piotr Krajewski and Marc Steiert.

1. Maria Fartunova-Michel is Associate Professor, Chaire Jean Monnet EUBioethics, IRENEE, University of Lorraine

(FRANCE), while Ivan Stoynev is Assosiate Professor, University of Sofia (BULGARIE). The organisers wish to express their gratitude to Professor Anastasia Iliopoulou-Penot, University of Paris II, Panthéon-Assas, Chair of the Panel on European Social Law. 2. Associate Professor, University of Saint-Louis (BELGIUM). 3. PhD Researcher, University of Sofia, University of Lorraine (FRANCE). 4. Postdoctoral Research Fellow, Luiss University, and Trainee judicial clerk, Italian constitutional Court (ITALY).

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Young FIDE Seminar Topic I: Mutual trust, mutual recognition and rule of law, by Cecilia Rizcallah The aim of the topic of the first panel, introduced by Maria Fartunova-Michel, associate professor of the University of Lorraine, was to examine the links between the principles of mutual trust and mutual recognition and the rule of law as defined in the recent case law of the Court of Justice. More specifically, the concept of the rule of law and the place of the values of EU shall be analysed in the light of Article 2 of the EU Treaty and the consequences of the axiological approach to European construction. The reference to the principle of mutual trust is not new to the EU legal system. It is now accepted that the ‘principle of mutual trust’ is fundamental not only to the area of freedom, security and justice, but also to justifying the specific nature of the European Union and its construction as a Union based on the rule of law. The purpose was to focus on the contribution of the principle of mutiual trust and on what it reveals about the European dynamic as a whole process in the light of three main points of view thanks to contributors to this panel.

It is now accepted that the ‘principle of mutual trust’ is fundamental not only to the area of freedom, security and justice, but also to justifying the specific nature of the European Union

The first one concerns the contribution of the the mutual trust to the construction of EU a complex legal space troughout the mutual trust and the respect for some fundamental values. Raquel Cardoso, Assistant Professor, PhD researcher at Faculty of law Coimbra, Portugal, has proposed to discuss this point in the light of European Constitutional Identity as mirror and reflection of national constitutional identities – concessions, limits and trust within the EU. Raquel Cardoso’s paper indeed brings a fresh outlook on the concept of European constitutional identity, which has recently gained prominence due to the Court of Justice’s rulings regarding the conditionality regulation. She argues that this notion actually limits the margin of action for member states, as they can no longer contravene the values that form the core of this common identity. This extremely interessant and relevant exposé introduced to the second point of the first panel: the mutual trust has been connected at some extend with defiance, mefiance or mistrust and it does reveal a crisis of values. Which is the consequence of such a crisis for the model of European economic governance? Guillermo Íñiguez Martinez, Phd Researcher at Somerville College, University of Oxford, explored this point and shed light on the crisis of values, the rule of law and mutual recognition. Guillermo Íñiguez Martinez’s paper addresses a relatively understudied area: the consequences of the values crisis on economic integration. While research has predominantly focused on the consequences within the Area of Freedom, Security, and Justice, Guillermo demonstrates that the rule of law crisis can also have significant adverse effects on the internal market. This particularly enlightening presentation, which brings us to the third point on our panel and mutual trust: the interaction between the principle of mutual trust, the democratic regime and the rule of law. This connection is increasingly highlighted in the recent case law of the Court of Justice, which links it to a fundamental issue in a liberal and democratic society: the division of powers. Jonas Bornemann, assistant professor of European law at the Rijksuniversiteit Groningen, discussed this

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point and proposed an original analysis about Discretionary powers – an (often overlooked) focal point of the rule of law crisis. The author analysed the decay of the rule of law from an original perspective by focusing on a well-known concept in administrative law: the power of discretion. Throughout his paper, he demonstrated how the abuse of this tool can serve illiberal goals. These three presented contributions underlined that the principle of mutual trust did reveal the advances and uncertainties, both in terms of strengthening the constitutional foundations and asserting the autonomy, opening up the prospect of the development of the European integration process.

Young FIDE Seminar Topic 2: The new geopolitical dimension of the EU Competition and Trade policies, by Agapia Kirilova The second panel focused on the new geopolitical dimension of the EU Competition and Trade policies, introduced by Ivan Stoynev, Associate professor at the University of Sofia. In 2021 the European Commission promote the concept of so called ‘open strategic autonomy’: a concept that aims to enhance Europe’s self-sufficiency and independence in critical areas while staying open to global trade and cooperation. This aims to make Europe more united, assertive and stronger; putting the interests and values of its citizens first. To stay influential globally, the vision of the Commission is focused on the ability of the EU to act independently in key matters while collaborating with partners when it is possible. This requires efficient and sustainable use of strategic assets – making the EU less reliant on other countries.

The ‘European way’ of doing business has been a success story for its industry and, as such, has benefited society as a whole

Open strategic autonomy is the concept that can help achieve this goal by promoting collaboration and coordination across different policies within the EU. Аs a result of the young FIDE seminar’s discussion, the three contributions have opened a new perspective of geopolitical dimension of the EU competition and trade policies and three main priorities for Europe’s open strategic autonomy could be clearly outlined: investing in digital autonomy and becoming a global leader in technology; increasing the international role of the EU towards a more sustainable trade policy; strengthening the application of EU competition rules. Concerning the first priority, Digital Market Act regulation, adopted in 2022, represents a fundamental piece of the legal foundations of the digital Europe of the future. In this sense, as it was mentioned in the contribution of M. Kaboré, the legal standards established in DMA will play a very important role in Europe’s goal of greater technological autonomy, understood as open technological autonomy – digitalisation is necessarily global – and based on European values.

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The ‘European way’ of doing business has been a success story for its industry and, as such, has benefited society as a whole. This approach is reflected in Europe’s values and its single market principles: openness and inclusiveness, fostering competition, innovation, and free trade, and increasing efficiency. The concept of ‘open strategic autonomy’ encompasses all these principles and promotes a positive vision that builds on Europe’s strategic assets and remains grounded in its values. With the DMA, the European Union aims to lead competition in the digital market and to curb potential abusive practices by Internet giants whose size transcends that of many national economies. Far from limiting innovation, Europe seeks to ensure that the development of the future digital economy is based on stronger guarantees for users – including commercial or business users – and for free competition. As it was well explained by Hamidou Kaboré, PhD Researcher at University of Artois, the DMA provides the legal definition of gatekeeper for large online platforms, under which fall practically all Big Tech companies, and establish regulations for their operations in the EU internal market. This could seem like a ‘discriminatory’ measure, however, it targets specifically gatekeepers, as they are not simple business competitors but real ‘business enablers’ therefore having specific obligations, that nonetheless apply equally for every company with this powerful influence on the markets. The DMA aims at striking the gatekeepers’ power over who enters the market and how and, in general, their power to manage demand and supply interactions. Mainly, the DMA forbids the practice of self-preferencing and establishes the duty of granting multi-homing and interoperability. Moreover, it allows businesses to access their data produced on the platform. The enforcement mechanism provides for Commission investigations and potential fines of up to 10% of the global revenues of gatekeepers. So, the DMA reflects the Commission’s ambitions to build sovereignty through regulation on its digital space and to reach autonomy by establishing fair competition and demolishing market barriers that will favor economic and industrial developments. Concerning the second priority, it is necessary to be mentioned that trade policy for decades has played a key role in supporting the EU’s competitiveness and in influencing investment decisions in Europe. At the same time in the last ten years EU tried to renew its trade policy by achieving new objectives: increasing resilience through diversification of imports; creating market opportunities for European companies; improving security and mitigating geopolitical risks; promoting more sustainable standards and ensuring a level playing field. To achieve those objectives EU should continue to pursue a positive trade agenda that aims at increasing market access in third countries as it is mentioned by Piotr Krajewski in his contribution, analysing the EU–Mercosur Association agreement. This agreement not only will open the doors between two of the largest markets and will generate real opportunities for businesses on both sides, but also will liberalise progressively the trade, thereby giving to the relevant economic sectors enough time to modernise and become competitive worldwide. Last but not least, the EU–Mercosur agreement has a potential to advance climate action and environmental protection. In fact, as Piotr Krajewski, PhD Researcher at University of Amsterdam, mentioned the political accord the EU and Mercosur reached in 2019 was among the first of its kind to include a reference to the Paris climate agreement. In Europe, however, there are doubts about the extent of this commitment, especially in view of the accelerating deforestation in Brazil in recent years.

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In fact, agreements such as the one proposed with Mercosur constitute the core of new European trade policy. Admittedly, each agreement of this type, taken individually, generally concerns only a very small part of the European economy. This is, incidentally, an argument that is sometimes used to minimise the scope of a particular trade treaty, when criticism of sustainability or agricultural interests is too strong. But it is indeed through these agreements that changes are introduced in relation to the general regime of rights, quotas and rules of international trade that are also defined by the agreements at the World Trade Organisation. And it is through their progressive accumulation that, in the end, the negotiated clauses produce significant inflections on the European economy. At the end, concerning the third priority, we should say that based on the current discourse around open strategic autonomy and the role of competition, it seems reasonable to infer that pursuing autonomy is unlikely to bring about any imminent ideological or policy shift under EU competition law soon. On the contrary, the concept of autonomy seems to be expressly invoked to justify the current competition policy and enforcement strategy at the EU level: as the argument goes, more vigilant competition enforcement creates better conditions for market players, including for domestic companies. When understood in this way, open strategic autonomy could also be equated with Europe’s ambitions to independently set and subsequently export its values and norms, inspiring regulatory and enforcement actions in national competition jurisdictions as it was mentioned by Emmanuil Kolev, PhD Researcher at University of Sofia, in his contribution.

Young FIDE Seminar Topic 3: The European social law-by Lorenzo Cecchetti The topic of the third panel was to discuss European social law introduced by Anastasia Iliopoulou-Penot, Professor of University Paris II Panthéon-Assas. The three contributions presented concerned three different – albeit to some extent interconnected – open issues and developments concerning European social law. Let me thus introduce the authors and the three presentations. Mr Théodore Plat, a young practitioner from France and ancien élève of the College of Europe, delivered the first presentation, titled ‘The effectiveness of social directives in the light of the Charter of Fundamental Rights of the European Union - a mirage on the social horizon?’, which focused on the developments in the Court of Justice of the European Union (‘Court’)’s case law in that regard. Ms Eva Meyermans Spelmans and Mr Jesse Peters, both lecturers at the University of Amsterdam, analysed two pending legislative initiatives presented by the European Commission, adopting a novel approach. Their paper was titled ‘The True Price of Fast Fashion: How the Green Deal Can Contribute to Better Labour Conditions in the Fashion Industry’. Mr Marc Steiert, PhD Researcher at the European University Institute in Florence, instead examined the European Union (‘EU’) policy and regulatory approach to youth’s mobility, presenting a paper on ‘Individual Opportunity or Collective Threat to Cohesion? The Regulation of the Youth’s Mobility and Brain Drain in the EU’s Legal Order’. These papers can be seen as complementary to each other. Such complementarity does not regard only the particular perspective they adopt but also the methodology used in each research. Indeed, the first paper carried out an analysis centred on the Court’s case law, the second paper focused on the EU legislative procedure, whereas the third paper drew our attention, inter alia, to the Commission’s normative and practical initiatives. Jointly considered, these three papers shed light on the past, the present, and the future of EU social law.

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The paper written by Théodore Plat analysed the effectiveness of EU secondary law, with specific regard to the effectiveness of ‘social directives’ (and, mainly, Directives 2000/785, 2003/88,6 and 2006/547) ‘in the light of ’ the Charter of Fundamental Rights of the European Union (‘Charter’). As it seems clear from the outset, with ‘social rights’ reference is made to ‘workers’ rights’, on which the study mainly centres. Also, the Delphic expression ‘in the light of’ the Charter, frequently used on the Kirchberg plateau (not necessarily in a coherent manner), here encompasses all situations where the Charter’s fundamental rights and the directives are used jointly. Most notably, the paper adopted a bipartite structure. In the first part, the author laid down an in-depth examination of the trajectory through which social rights have been granted effectiveness by the Court, taking the relationship between the Charter and secondary law provisions as the principal lens of inquiry. The several phases of the ‘emancipation’ of the Charter have been outlined with references to the well-known rulings in this regard, including Mangold,8 AMS,9 Egenberger,10 and Bauer.11 The Court’s rulings in Max-Planck,12 Cresco Investigation,13 and CCOO14 are also interestingly examined and associated with the doctrine of ‘positive obligations’. In the second part, Théodore looked at the ‘limits’ and ‘ambiguities’ surrounding these judicial developments from both a theoretical and practical perspective. The main objective was to address one central question: is the effectiveness of EU law enhanced in practice? Amongst the issues touched upon, suffice it to mention the following ones: (a) the applicability of the direct effect test to the Charter’s fundamental rights; (b) the role played by the wording of the Charter’s provisions to this end; and (c) the distinction between the ‘core’ and ‘non-essential elements’ of those fundamental rights. Specific attention was paid to the ‘horizontal direct effect’ issue, which – as rightly stressed in the analysis – is of primary importance for any study on fundamental social rights. Based on this analysis, the author advocated that the Court should reconsider its case law according to which references to national and European legislation in the Charter’s provisions normally rule out their direct effect. The proposed reconsideration would contribute to enhancing the effectiveness of the EU fundamental social rights constitutionalised in the Charter. I would argue that ‘effectiveness’, a term resulting from the title of the paper, is the leitmotif of Théodore’s work, which has the merit of shedding light on one of the major conundrums of EU social law, namely the absence of a particular legal regime capable of distinguishing ‘fundamental social rights’ from ‘ordinary social rights’.15 The case law analysis in the paper 5. Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 6. Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the organisation of working time. 7. Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). 8. Judgment of 22 November 2005, Case C-144/04, Mangold, EU:C:2005:709. 9. Judgment of 15 January 2014, Case C-176/12, Association de médiation sociale, EU:C:2014:2 (AMS). 10. Judgment of 17 April 2018, Case C-414/16, Egenberger, EU:C:2018:257. 11. Judgment of 6 November 2018, Joined Cases C-569/16 and C-570/16, Bauer, EU:C:2018:871. 12. Judgment of 6 November 2018, Case C-684/16, Max-Planck, EU:C:2018:874. 13. Judgment of 22 January 2019, Case C-193/17, Cresco Investigation, EU:C:2019:43. 14. Judgment of 14 May 2019, Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO), ECLI:EU:C:2019:402 (CCOO). 15. Sophie Robin-Olivier, ‘Les droits sociaux fondamentaux dans l’Union européenne: quelle force juridique?’ in Ségolène Barbou des Places, Etienne Pataut, Pierre Rodière (eds), Les frontières de l’Europe sociale, Pedone, 2018, pp. 77-91, p. 78.

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showed the great activity performed by the Court in protecting and ensuring the effectiveness of (fundamental) social rights, without overlooking the major open issues in that regard. It may be also stressed that the paper was ultimately based on an understanding of effectiveness as a synonym of ‘justiciability’. This understanding is not, however, the only dimension of effectiveness that deserves attention. We are indeed experiencing a convergence of both the Court’s and the legislator’s activity in developing the EU social policy. As the author acknowledged in the conclusion, the European Pillar of Social Rights (‘EPSR’) can certainly contribute to the enhancement of the UE workers’ rights,16 provided that the Charter rights will be – one might say – ‘taken seriously’. The second paper proved the importance of the EU legislator’s activity in guaranteeing the effectiveness of EU fundamental social rights, as we are about to see. Eva’s and Jesse’s analysis indeed focused on the role that two pending legislative proposals adopted in the framework of the European Green Deal can play in better labour conditions in the fashion industry if a ‘true pricing’ approach were to be adopted. The two proposals under investigation are the Proposal for a Directive on corporate sustainability due diligence (CSDD)17 and the Proposal for a Regulation prohibiting forced labour (FLR).18 Although the scope of their analysis was confined to the ‘fashion industry’, whose current model of business poses severe issues to both social and environmental protection due to the exploitative nature of the ‘fast fashion’ phenomenon, other sectors of the economy can undoubtedly benefit from the recommendations to improve the ‘effectiveness’ of the two acts aired in this work. The paper comprised two main sections. The first one examined the true pricing approach’s aims, methodology and relevance. In a nutshell, this approach, elaborated by the True Price Foundation, aimed at resolving market failures resulting from a lack of transparency and remediation by eliminating the competitive advantage deriving from rights violations. Indeed, ‘negative externalities’ were defined as rights-based externalities in terms of violation in the production process of internationally recognised fundamental rights. As clarified by the authors, a piece of EU legislation is in accordance with that approach if a three-limb test is satisfied. In a nutshell, the approach consists of three limbs: (a) incentivising all companies to adopt sustainable practices; (b) creating substantive obligations aimed at reducing the negative environmental and social/ labour externalities; and (c) ensuring effective enforcement. In the second section, the authors applied the ‘true pricing’ approach to the two proposals mentioned above, paying particular attention to the specific features of the fashion industry, among which lies ‘the complex and opaque nature of global fashion value chain’. They thus identified several ways to improve the effectiveness of these proposals, which translated into a series of recommendations to the EU legislators. By way of example, as regards the CSDD, it was suggested to introduce proportionate obligations for enterprises, requiring responsible purchasing decisions by enhancing transparency on the value chain and improving the civil liability scheme laid down in the proposal. Regarding the FLR, it was proposed to reverse the burden of proof to allow effective enforcement and introduce a system of remedies.

16. On the role of the EPSR’s potential to improve the social output of the EU, see Sacha Garben, ‘The European Pillar of Social

Rights: Effectively Addressing Displacement?’, 1 European Constitutional Law Review 14, 2018, pp. 210–230. 17. Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM/2022/71 final. 18. Proposal for a Regulation of the European Parliament and of the Council on prohibiting products made with forced labour on the Union market, COM/2022/453 final.

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In my view, the paper’s topic is particularly timely, and the significance of the study by far transcends the two proposals examined and the fashion industry. Besides the specific recommendations formulated, the true pricing approach could prove helpful in relation to any legislative proposal, especially those adopted in the context of the European Green Deal or based on internal market legal bases. Assessing these proposals against the three limbs mentioned above would profoundly contribute to achieving the Green Deal’s objectives, and more generally, the Union’s ones, by contributing to the effectiveness of its legislative action. One might even argue that Green Deal without a true pricing approach should rather be named ‘green washing’,19 since it will largely disregard and fail to address the negative environmental and social/labour externalities. Hence, why do we not proceduralise the true pricing approach by elaborating a grid similar to that developed for assessing the respect of the subsidiarity principle within the EU legislative process? This is not to say that social and environmental concerns are not taken into account already in this process. To some extent, any Explanatory Memorandum addresses those issues; beforehand, they are also examined in the Impact Assessment Report accompanying the proposals.20 Nonetheless, if the above-mentioned three-limb test is translated into a concrete and turnkey grid, the effectiveness of the measures would be enhanced. In turn, this proposal for a ‘True Price Grid’ may contribute to ‘taking seriously’ the social and environmental objectives set out in Articles 8-13 TFEU, of which the EU legislature is obliged to take account in all phases of the legislative process. Despite the different methodologies and subjects, both this analysis and the previous paper by Théodore underscore the necessity to ensure the effectiveness of fundamental labour rights protected at the international level and in the EU legal order. This holds particularly true considering that – as the three authors stressed – although we live in a globalised society witnessing the rise (and now consolidation) of ‘private power’, these ‘constitutional norms’ are not directly binding upon private businesses. Furthermore, it is worth noting that Eva’s and Jesse’s work is premised on the interrelatedness of environmental and social justice concerns, which is particularly evident in the fashion industry. The need of such a ‘holistic approach’, which is not a complete novelty and underlies the European Green Deal as well as other Union policies, lies at the core of the third paper. Indeed, Marc’s paper examined the EU policy and regulatory approach to youth’s mobility and stresses the need for ‘a more wholistic and sustainable regulation of mobility’. Most notably, the author outlined the trajectory of the Union’s regulation of intra-EU youth’s mobility from its origins to the present day. In doing so, the analysis does not overlook broader reflections about the ultimate rationale(s) of the Union’s regulatory activity in the social field, including the assumptions upon which those origins were based and the twofold soul of any regulation of labour at the EU level (market-correcting vs marketcreating function). Remarkably, the study devoted specific attention to what may be defined as the ‘dark side’21 of the regulatory framework of mobility in the Union, i.e. the so-called ‘Brain Drain’. In the author’s words, this phenomenon can be described as a situation where ‘workers moving to more prosperous regions, while allegedly leaving their already disadvantaged home 19. Please note that this is my personal take on the question just posed, do not blame the authors for this expression. 20. As regards the proposals examined in the paper, see, for instance, the Annex 4 – Identification and Assessment of Impacts, pp. 95-107, attached to Commission Staff Working Document Impact Assessment Report Accompanying the document ‘Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937’, SWD/2022/42 final. 21. This term was not used in the paper.

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regions without human capital for catching up economically’. In brief, the two main research questions underlying the paper can be summed up as follows: How does the EU engage with the regulation of the youth’s intra-EU mobility? Does it address brain drain and ‘drawbacks’ of free movement, including the perspective of the stayers? The paper was structured into three sections. The first one examined the types of mobility at the core of the European integration process, the rights conferred to workers, self-employed persons, and citizens, the rationales behind exercising these rights, and the allocation of competences between the Union and the Member States in this regard. The author argued that such division of competences has come under strain and that a ‘sustainable’ regulation of mobility requires considering the perspective of both EU citizens exercising the free movement rights and stayers. The second section engaged with the three tenets of intra-EU youth’s mobility regulation, such as the free movement provisions enshrined in the treaties – benefitting from a generous interpretation by the Court –, the coordination of employment policy, and the European Social Fund. In the third section, the author identified three ways to render the regulation of youth’s mobility ‘more sustainable’. I submit that the added value of the paper lies in the fact that the author rejects the thesis that the EU can only promote mobility without addressing the perspective of the stayers due to the allocation mentioned above of competences. Indeed, the normative and practical resources identified in the third section are based on the use of existing legal bases and funding schemes to create rights and opportunities for stayers, thereby addressing the Brain Drain phenomenon. Amongst the ideas put forward in the paper, it suffices to recall the enhancement of the role of Article 47 TFEU, Principle 4 of the European Pillar of Social Rights, and the European Social Fund Plus. No treaty reform is thus considered indispensable. Nevertheless, the other side of the coin is that those proposals are inspired by what can be defined – in my opinion – as an output legitimacy logic.22 In practice, this means that untill the Union delivers good results, the issues of Brain Drain and the stayers – increasingly experiencing the feeling of being ‘left behind’ – will probably be alleviated. However, as soon as the Union support becomes temporarily insufficient – imagine an economic downturn or a change in the policies pursued in Brussels – those issues swiftly re-emerge. In a recent EU Law Live podcast, Professor Weiler has reminded us that an integration primarily based on output legitimacy is, sooner or later, destined to fail.23 Strengthening the input legitimacy dimension of the European integration process is also of pivotal importance, allowing ‘the principal stakeholders, the people of the member states to feel they are in control’.24 These considerations may play a role in reflecting on how to address the issues at the centre of this third paper.

22. On this concept, see Fritz W Scharpf, Governing in Europe: Effective and Democratic?, Oxford University Press, 1999, pp.

6-42; and Vivien A Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and ‘Throughput’’, 1 Political Studies 61, 2013, pp. 2-22. 23. EU Law Live Podcasts, ‘A conversation with Joseph Weiler (Part I) on the past, present and future of European integration’, 3rd November 2021. 24. Ibid.

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Discretionary power – a revered instrument in the toolbox of autocrats Jonas Bornemann1 Discretion is a widely used element of autocratic reforms in Europe and elsewhere. This is no coincidence. Discretion proffers both practical and strategic advantages for executive actors pursuing an autocratic agenda. In practical terms, it establishes a mode of executive decision-making authority that is rather easily abused for the purposes of autocratic reform. Strategically, discretion permits autocrats to undermine the authority of courts and to benefit from an air of lawfulness in doing so. Against that backdrop, the view can be put forward that discretion constitutes a revered instrument in the toolboxes of most (if not all) autocrats. This Long-Read will draw attention to discretion as a feature of autocratic reform. It will discuss both the advantages that discretion generates for autocratic lawmakers and the way in which European courts have responded to it. The Long-Read will illustrate its findings by way of reference to reform measures put into practice in Poland and Hungary in recent years. It will proceed in four steps. First, it highlights the fact that autocratic reforms tend to promote a mode of unfettered executive decision making (1.). Subsequently, in a second step, the Long-Read argues that discretion often serves as a smokescreen for autocratic intentions underpinning reforms at national level, outlining moreover the way in which European courts have responded to such a strategy of disguise (2.). Third, it focuses on the rhetoric of discretion used by autocratic actors to undermine the authority of courts (3.), before, fourth, briefly summarising the role of discretion as a recurrent building block of autocratic projects (4.).

Discretion is a widely used element of autocratic reforms in Europe and elsewhere. This is no coincidence

1. Mirages of discretion: debunking autocratic claims of absolute power It is often acknowledged that the term ‘absolute discretion’ should best be viewed as a contradiction in terms. Conceptually, the notion of discretion does not seem to equate with unfettered freedom of choice. Rather, it resonates with a mode of decision making that is nested in and delineated by standards of law. While instances of very wide discretion certainly exist 1. Assistant Professor of European Law, Rijksuniversiteit Groningen.

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in administrative systems throughout Europe, it can be viewed as a pan-European trend that ‘absolute’ discretion finds itself gradually subjugated to standards of legality and (some form of) judicial review. Yet, by introducing instances of unfettered discretionary power for illiberal purposes, autocratic lawmakers effectively defy this pan-European development. Autocratic reforms in Europe tend to introduce instances of discretionary power that are virtually unfettered. A specific limb of Hungarian police law, for instance, permitted the competent minister to authorise surveillance actions for national security purposes, without however imposing the requirement of involving a court to that end and very limited substantive or procedural limitations to this power. Without beating about the bush, in Szabo, the European Court of Human Rights (ECtHR) clarified that, in matters affecting fundamental rights, such an instance of absolute discretion ‘would be contrary to the rule of law, one of the basic principles of a democratic society’.2 The Strasbourg court highlighted that respect for fundamental rights, in casu the right to privacy, presupposes that the law in question is of a certain quality. Accordingly, the relevant national legal framework must include ‘adequate and effective safeguards and guarantees against abuse’.3 While Contracting States have a certain margin of appreciation in this regard, the requirement that the law in question is of a certain quality equally underpins the court’s perspective on instances of executive discretion. National law must therefore indicate the scope of any such discretion and instruct the manner of its exercise with ‘sufficient clarity’ to give individuals ‘adequate protection against arbitrary interference’.4 To be sure, this is a relatively low bar to clear. Absence of arbitrariness need not necessarily translate to prudent or fair reasoning. It does, however, impose a certain minimum standard of clarity on national law that precludes the existence of unfettered executive discretion.

The distinction between instances of discretion, on the one hand, and virtually unfettered executive power, on the other, is notoriously difficult to draw – and autocratic lawmakers know it

2. Judgment of the ECtHR of 12 January 2016, Szabó and Vissy v. Hungary (application no. 37138/14, para. 65. 3. Judgment of the ECtHR, Szabó and Vissy v. Hungary, para. 59. 4. Judgment of the ECtHR, Szabó and Vissy v. Hungary, para. 65.

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Still, the distinction between instances of discretion, on the one hand, and virtually unfettered executive power, on the other, is notoriously difficult to draw – and autocratic lawmakers know it. It is therefore no coincidence that autocratic reforms often promote instances of discretion that formally include some limits to executive power but make sure that this does not translate to effective barriers in practice. This effect featured prominently in relation to reforms to the retirement regime applicable to judges in Poland. The legal framework established at the time authorised the minister of justice to prolong judges’ terms of office on a discretionary basis. To that end, the relevant legal framework stipulated that the minister ‘may consent’ to a judge remaining in office by ‘having regard to the rational use of the staff of the ordinary courts and the needs resulting from the workload of individual courts’ (Art. 69 (1b) of the Law on the Ordinary Courts). On the one hand, it is not inconceivable to read this as a standard of rationality limiting the Minister’s discretion. On the other hand, as the Court of Justice rightly noted, such limitations are ‘too vague and unverifiable’ to serve as meaningful limits to discretionary decision making that are, moreover, not subject to any judicial scrutiny.5 In fact, this new legal regime amounted to an instance of unfettered executive power to cherry pick those judges that should be allowed to remain in office.

2. Discretion – the perfect disguise?

By introducing legal arrangements that broadly rest on discretionary power, autocratic lawmakers may be able to aggravate scrutiny of European courts, rendering it difficult to assess the autocratic nature of such reforms in the abstract

For autocratic lawmakers, discretion may often serve as a legal disguise. Instead of explicitly drawing out the illiberal workings of reform in legal text, it may be preferable for autocratic lawmakers to couch their true intentions in discretionary legal arrangements, such as vaguely termed preconditions for executive action or decision-making latitude in opting for a specific legal consequence. In this vein, discretion may be a means to avoid paper trail in statutory law. As a corollary, it will often be difficult (if not impossible) to grasp the autocratic effects of reform by merely looking at the legal framework as such. Instead, it would be necessary to equally assess the way in which powers are used in practice to detect the autocratic workings of reforms. In Europe, such a strategy of disguise has been gleefully put to practice to ward off interventions of European courts. By introducing legal arrangements that broadly rest on discretionary power, autocratic lawmakers may be able to aggravate scrutiny of European courts, rendering it difficult to assess the autocratic nature of such reforms in the abstract. In the context of changes to the disciplinary regime applicable to judges in Poland, for instance, Polish government agents went to great lengths to argue before the ECJ that such a legal arrangement would not, in any way, be used by the competent authorities to undermine judicial independence, producing more than 2000 pages of documents to show for it (at para. 78).6 In practical terms, this may be viewed as a deliberate

5. Judgment of 5 November 2019, Case C-192/18, Commission v. Poland, EU:C:2019:924, para. 122. 6. Judgment of 15 July 2021, Case C-791/19, Commission v. Poland, EU:C:2021:596, para. 78.

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attempt to paper jam the Court. On an intermediate level of analysis, however, it illustrates how, for judicial actors at European level, it can be rather difficult to apprehend the effects of national reform once the latter entails vastly discretionary legal arrangements. This suggests that discretionary powers may serve as a smokescreen to disguise autocratic motives. At least for some time, it permits lawmakers to benefit from the legitimacy associated with lawful conduct by sweeping their illiberal intentions under the carpet of arguably lawful reforms. Unlike more patent institutional attacks on courts (such as institutional hijacking or court-packing), discretion allows for comparably subtle mode of undoing checks to executive power. To be sure, European courts have found ways to dispel this strategy of disguise. However, the time that it takes for judges – be it at national or European level – to recognise the effects of reforms that largely revolve around discretionary decision-making may play into the hands of autocratic actors.

3. Inroads to judicial authority and the autocratic rhetoric of discretion One of the reasons why discretion features prominently in autocratic reforms may be rooted in the fact that it allows for the weakening of judicial authority. Discretion does not just establish a mode of relative executive freedom but corresponds likewise with a method of limited judicial review. Conceptual differences among national traditions notwithstanding, this would preclude courts from superseding executive decision-making in substance. Against this backdrop, it comes as no surprise that autocratic lawmakers gleefully advocate for discretionary power in situations where courts would otherwise assume a powerful role. Such an approach featured already in the Szabo judgment. In this litigation, the Hungarian government had argued that executive authorities would be better placed to authorise surveillance measures than judges and, for that reason, there should be a measure of discretion.7 This is not one off. Instead, the argument can be made that autocratic lawmakers endorse the language of discretion in a strategic fashion, i.e., as a justificatory argument to weaken the authority of judges more broadly. In the field of asylum law, for instance, the Hungarian government argued before the ECJ that limited judicial review would be justified by the level of complexity that asylum decision-making entails. According to the government’s submission, this complexity could only be mastered by virtue of expertise which may exclusively be found in highly specialised administrative migration authorities.8 This suggests that the Hungarian government employed the rhetoric of discretion to justify reforms establishing a method of limited judicial review.9 While the ECJ rejected this argument based on the Procedures Directive and Article 47 of the Charter of Fundamental Rights, this illustrates how discretion may be abused by autocratic lawmakers to justify the undermining of judicial authority. In its judgment in Torubarov, the ECJ acknowledged as much, explicitly rebutting the arguments of the Hungarian government that there should be ‘discretion’ for executive authorities in the field of asylum law.10

7. Judgment of the ECtHR, Szabó and Vissy v. Hungary, para. 76. 8. See Advocate General Bobek’s Opinion of 30 April 2019 in Case C-556/17, Torubarov, EU:C:2019:339, para. 79. 9. Jonas Bornemann, ‘The Role of Member State Governments in Migration Litigation before the ECJ’, in European Journal of Migration and Law, 2020, pp. 541-570, at p. 563. 10. Judgment of 29 July 2019, Case C-556/17, Torubarov, EU:C:2019:626, para. 75.

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4. Discretion as a tool of autocratic reform As the preceding sections suggest, discretion may represent a recurrent and revered element of autocratic reform. In this context, discretionary power proffers at least three advantages. It may, first, be used by autocratic lawmakers to establish a mode of virtually unbridled executive decision-making authority. As the icing on top of the autocratic cake, second, reforms that introduce discretion may equally undermine the authority of courts, namely where judges were previously in a position to carry out full judicial review and would, following autocratic reform, be limited to marginal review. Third, discretion may act as a smokescreen, concealing the autocratic intentions underpinning reforms vis-á-vis, among others, European courts. While the latter have found ways to dispel such a strategy of autocratic lawmaking, these advantages seem to substantiate the impression that discretion is likely to remain a prominent feature of autocratic reform.

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Squaring the Circle: The Quest for an Open, Sustainable and Assertive Trade Policy and the EU-Mercosur Trade Agreement Piotr Krajewski1

Introduction The EU-Mercosur Association Agreement (AA) constitutes a hugely ambitious endeavour. If concluded, the agreement would create the largest free-trade area in the world covering a population of almost 720 million. As an association agreement, the deal consists of a trade liberalisation and a political cooperation part. Both sides have reached an agreement in principle as to the two parts – in 2018 for the political and cooperation pillar, and in 2019 for the trade pillar. The Agreement has not been signed or concluded at the time when this piece is being written, although we have recently seen numerous high-level political efforts to seal the deal, the latter gaining pace after the election of Luiz Inácio Lula da Silva as President of Brazil. The Agreement was formally negotiated over the course of almost 20 years (1999-2019) which means that in the meantime the EU has thoroughly revised its trade policy framework. The Agreement has generated a lot of controversy, mostly with respect to its environmental consequences and broader compliance with climate policy objectives of the EU.2 These concerns were only exacerbated by disastrous deforestation of the Amazon rainforest pursued by the administration of the former Brazilian President, Jair Bolsonaro, sometimes colourfully described as ‘the Trump of the Tropics’. In this connection, the question of trade and sustainable development can be seen as a focus point for the transformation of the EU trade policy paradigm as well as an illustration of the EU’s normative aspirations and limits thereof in foreign policy. Against this backdrop, this piece examines selected trade-related climate commitments enshrined in the Agreement and puts them in the context of the current EU trade policy paradigm described as Open, Sustainable, and Assertive Trade Policy.3 I argue that framing of trade-related climate policy commitments by the European Commission obfuscates difficult trade-offs between economic opportunities and environmental costs that might result from the conclusion of the Agreement. In this connection, the Commission arguably overplays the importance of Trade and Sustainable Development (TSD) provisions and wrongly suggests that the pursuit of trade liberalisation cannot come into conflict with EU climate policy ambitions.

1. PhD candidate, University of Amsterdam. 2. James Harrison, Sofia Paulini, ‘The Trade and Sustainable Development Chapter in the EU-Mercosur Association Agreement. Is it fit for purpose?’, ClientEarth, July 2020; Guillaume Van der Loo, ‘Mixed’ feelings about the EU–Mercosur deal: How to leverage it for sustainable development’, European Policy Centre, 14 April 2021. 3. European Commission, ‘Trade Policy Review – An Open, Sustainable and Assertive Trade Policy’, 18 February 2021.

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The question of trade and sustainable development can be seen as a focus point for the transformation of the EU trade policy paradigm as well as an illustration of the EU’s normative aspirations and limits thereof in foreign policy

EU-Mercosur Agreement and climate policy objectives Trade and Sustainable Development chapters included in EU trade agreements have constituted the most prominent element aimed at ‘greening’ these agreements, aiming to reconcile trade liberalisation with climate policy provisions and safeguard space for regulation in public interest. The substance of the TSD chapter in the finalised version of the EUMercosur AA does not significantly differ from those included in other comprehensive agreements negotiated around that time, such as the EU-Japan Economic Partnership Agreement or the EU-Singapore Free Trade Agreement.4 The Chapter in question codifies the right to regulate in the public interest, in line with the paradigm of EU trade policy since 2015 (Article 2(1) of the TSD Chapter). A closely related provision enshrines the non-regression principle whereby the Parties must not weaken the regulatory standards in order to encourage trade or investment (Article 2(3) of the TSD Chapter). The chapter also includes a reference to multilateral environmental conventions and the Paris Climate Agreement. In this connection, the Parties commit to effectively implement the Paris Agreement, to shape trade policies in a way that will enable a reduction in greenhouse gas emissions, and to cooperate on trade-related climate change issues (Article 6 of the TSD Chapter). Finally, the TSD chapter establishes a special dispute resolution mechanism (as opposed to other parts of the agreement). In the event of a dispute that has not been resolved through dialogue and consultation, the Parties may request the establishment of a Panel of Experts that would produce a report containing the assessment of facts, findings, and recommendations (Article 17(9) of the TSD Chapter).

4. The text of the Chapter as per the Agreement in principle reached in 2019 is available here.

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There is some significance to the fact that before the EU-Mercosur AA was finalised neither Mercosur as a block nor its members had concluded a trade agreement with a dedicated chapter dealing with questions of climate policy.5 That being said, the chapter suffers from several deficiencies. Crucially, the ordinary dispute settlement mechanism does not cover the TSD part of the agreement (Article 15(5) of the TSD chapter). Likewise, in contrast to the newly updated approach of the Commission to TSD obligations6, there is no possibility to apply sanctions for non-compliance with TSD commitments. This stands in contrast to enforcement of TSD commitments enshrined in the recent EU-New Zealand Free Trade Agreement.7 Some commentators have also criticised the vague and aspirational language of TSD obligations, for instance with respect to the “effective implementation” of the Paris Agreement, claiming that it would be impossible to determine a violation of this provision on the part of one of the parties.8 In this context, it is important to reflect on the inherent limitations of TSD provisions seen as an instrument of climate policy. Examining the nature of the Trade and Sustainable Development chapters in Opinion 2/15, the Court of Justice pointed out that provisions outlined therein do not aim to harmonise labour or environmental standards but instead are meant to ensure that trade liberalisation would not affect the existing regulatory standards or threaten compliance with multilateral environmental or labour conventions.9 The Court went as far as to claim that trade liberalisation is made conditional on respect for international environmental commitments.10 Such framing is arguably wrong because it is not possible to suspend trade liberalisation for non-compliance with TSD provisions, at least when it comes to the EU-Mercosur AA.11 At any rate, even though some of these provisions create self-standing obligations, many of them are aspirational or simply restate existing international obligations without adding normative substance.12 This means that they would be unfit to tackle the most controversial issue related to the agreement, namely deforestation triggered by increased agricultural production in Mercosur countries and increased transport emissions associated with growing trade volumes. The most recent Sustainability Impact Assessment for the EU-Mercosur AA likewise emphasised that the most pressing sustainability concerns would above all require legislative action on the part of Mercosur countries.13 With respect to the Commission, it might be politically difficult to admit limited powers of the EU when it comes to tackling deforestation in Latin America, especially when the Commission tries to convince its institutional partners in the Council and the Parliament that the conclusion of the AA could be squared with sustainability ambitions enshrined in the Trade Policy Review of 2021 and the EU Green Deal. 5. LSE Consulting, ‘Sustainability Impact Assessment in Support of the Association Agreement Negotiations between the European Union and Mercosur’, December 2020, p. 67. 6. European Commission, ‘The power of trade partnerships: together for green and just economic growth’, 22 June 2022. 7. Article 26.2 of the EU-New Zealand Free Trade Agreement. 8. Marco Bronckers, Giovanni Gruni, ‘Retooling the Sustainability Standards in EU Free Trade Agreements’ (2021) 24 Journal of International Economic Law 25, 29. 9. Opinion of 16 May 2017, 2/15, EU:C:2017:376, paras. 163-166. 10. ibid. 11. Gracia Marín Durán, ‘Sustainable development chapters in EU free trade agreements: Emerging compliance issues’, (2020), 57, Common Market Law Review, Issue 4, pp.1 1047-1048. 12. Jessica C Lawrence, ‘The EU in the Mirror of NPE: Normative Power Europe in the EU’s New Generation Trade and Investment Agreements’ in Csongor István Nagy (ed), World Trade and Local Public Interest, vol 19 (Springer International Publishing 2020) 46. 13. LSE Consulting, Sustainability Impact Assessment, p. 337.

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In this context, addressing the findings of the SIA, the Commission chose to emphasise the potential of unilateral measures that aim to address the concerns at the intersection of trade and environmental policy.14 This approach is also in line with the current trade policy paradigm as outlined in the Trade Policy Review of 2021 where the Commission singled out the importance of unilateral instruments such as the Carbon Border Adjustment Mechanism and the Deforestation Regulation.15 These instruments should be viewed in the context of trade agreements because they allow the EU to apply extraterritorially its regulatory standards in a more effective way than through TSD chapters. In this sense, they demonstrate that in the realm of trade policy, the EU is willing to soften its principled and somewhat sanctimonious emphasis on multilateralism and harness its market power to pursue long-time strategic objectives defined by political actors, at least in the realm of trade policy. However, these instruments still do not make it possible to fully alleviate climate policy concerns associated with the EU-Mercosur deal. For instance, the range of commodities covered by the Deforestation Regulation is narrower than a range of goods falling under trade liberalisation in the EU-Mercosur deal.16 The question of emissions stemming from transport of goods remains concerning and would become more acute if the Agreement delivers on its promises and substantially increases trade volumes between the EU and Mercosur. As a final note, it is important to mention that in an attempt to address sustainability concerns, the Commission has been negotiating with Mercosur a Joint Instrument concretising obligations outlined in the TSD chapter. According to the textual proposal of the Instrument, it would constitute a statement of the parties outlining an agreed interpretation of the treaty as understood in Article 31 of the Vienna Convention on the Law of Treaties.17 As such, it would not add new normative substance to the Agreement in principle which seems consistent with both the parties trying to avoid reopening the negotiations. On the other hand, some of the provisions of the Joint Instrument arguably go beyond the interpretation of the existing TSD commitments. It remains to be seen if the Joint Instrument is ever agreed and if the proposal will correspond to the final version.

Conclusion Substantive concerns over the compliance of the Agreement with EU climate policy are difficult to dismiss. TSD commitments set out in the agreement are largely aspirational and symbolic; at the same time, there are inherent limits to what this kind of commitments can achieve, especially when it comes to persuading (or compelling) EU trade partners to change their domestic policies. The impact assessment studies have demonstrated negative, if limited, impact of the Agreement on agriculture-driven deforestation.18 In turn, the Commission argued that technological changes and increased regulatory measures will alleviate these concerns.19

14. European Commission Services’ Position Paper on the Sustainability Impact Assessment in support of Negotiations for the

Trade Part of the European Union-Mercosur Association Agreement, March 2021, p.10. 15. European Commission, ‘Trade Policy Review’, p.13. 16. Regulation (EU) 2023/1115 on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation, OJ L 150, 9.6.2023, p. 206–247, Annex 1. 17. EU-Mercosur Joint Instrument, Draft Document. 18. LSE Consulting, Sustainability Impact Assessment, pp. 103-105. 19. European Commission Services’ Position Paper on the Sustainability Impact Assessment, pp. 5-6.

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In my view, the Commission should more candidly discuss difficult trade-offs between economic growth and climate action in the context of trade policy and not overplay the importance of aspirational commitments enshrined in TSD chapters. Claiming that these commitments make it possible to promote economic growth and climate policy at the same time amounts to cakeism and does not facilitate an honest debate about redistributive consequences of the green transition. I do not mean to dismiss the importance of promoting economic growth and its potential to reduce poverty and elevate standards of living, both in Mercosur and the EU. However, the environmental costs of these opportunities should be discussed more openly. This would also reinforce the credibility of normative aspirations of EU trade policy, focusing the attention of policymakers on substance rather than on rhetoric.

The Commission should more candidly discuss difficult trade-offs between economic growth and climate action in the context of trade policy and not overplay the importance of aspirational commitments enshrined in TSD chapters

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Opportunity or Threat to Cohesion? Brain Drain and Young People’s Geographical Mobility in the EU Marc Steiert1 South-North migration in the EU returned unexpectedly during the euro-crisis accompanied by East-West postenlargement migration. This phenomenon was characterised by comparatively young and increasingly skilled migrants.2 These migrants were motivated by an asymmetric unemployment crisis and the segmentation of domestic labour markets. Yet the EU also gradually promoted young people’s geographical mobility as an employment policy instrument,3 which led to the EU being criticised for promoting Brain Drain.4 Brain Drain can be understood as ‘a tendency for human capital to agglomerate where it is already abundant’5. In the EU, this often alludes to young, skilled EU citizens moving to more prosperous regions leaving their disadvantaged home regions without the human capital to catch up economically. I take this critique as a starting point to explore how the EU regulates young people’s geographical mobility. I only discuss intra-EU geographical mobility, whereas EU migration law is becoming increasingly important with regard to the distribution of labour due to our ageing society and emerging skills shortages. My Long-Read, therefore, offers three takeaways: first, I emphasise that focusing only on free movement law is too narrow for understanding geographical mobility and its shortcomings. We should move towards a broader lens that analyses the regulation of intra-EU, geographical mobility. This lens also allows to move beyond this Long-Read’s focus on the young generation. Second, I highlight the instruments regulating young people’s geographical mobility, that is the regulatory framework of the Brain Drain criticism, and stress that this framework promotes mobility without much regard for the perspectives of those who do not or cannot cross internal borders. Third, the Brain Drain criticism demonstrates that the division of tasks between the EU creating a market corrected by the Member States is also under strain in the free movement of persons.6 We need a more sustainable regulation of geographical mobility that accounts for the Union’s social and economic objectives. This more sustainable approach should promote geographical mobility’s take-up, but also the empowerment in the labour market of those who do not or cannot cross internal borders. I identify exemplary sources that can point into this direction with regard to the, albeit limited, group of young people. 1. Ph.D. Researcher in EU Labour Law, European University Institute. I would like to thank Maria Fartunova-Michel and

Ivan Stoynev for organizing the Young FIDE Seminar 2023. I am also very grateful to Anastasia Iliopoulou-Penot, Lorenzo Cecchetti, Théodore Plat, Eva Meyermans Spelmans, and Jesse Peters for our reflections on EU social law in Sofia. 2. Jean-Michel Lafleur and Mikołaj Stanek (eds), South-North Migration of EU Citizens in Times of Crisis (1st edition, Springer International Publishing 2017). 3. European Commission, ‘COM (2010) 477 Final Youth on the Move - An Initiative to Unleash the Potential of Young People to Achieve Smart, Sustainable and Inclusive Growth in the European Union’. 4. Reflected by, e.g., Council of the European Union, ‘Council Decision 2015/1848/EU - of 5 October 2015 - on Guidelines for the Employment Policies of the Member States for 2015, OJ L 268, 15.10.2015, p. 28–32’. 5. Jacob A Hasselbalch, ‘Framing Brain Drain: Between Solidarity and Skills in European Labor Mobility’ (2019) 26 Review of International Political Economy 1333. 6. Diamond Ashiagbor, ‘Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration’ (2013) 19 European Law Journal 303.

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Beyond Free Movement Law – Three Tenets Regulating Young People’s Geographical Mobility in the EU The legal analysis of intra-EU geographical mobility tends to look at free movement law strictly understood, i.e., the free movement rights created by EU primary law, secondary law adopted thereunder, such as Regulation 492/2011/EU and Citizenship Directive 2004/38/EC, and their interpretation by the EU’s Court of Justice. This scholarship is an important contribution to European integration given the central role and successful Europeanisation of the fundamental freedom to move. However, it does not capture the entire regulatory framework of geographical mobility and, in particular, its shortcomings. It focuses on the individual dimension of mobility, while its aggregate regulation is not comprehensively taken into account. Young people’s geographical mobility in the EU operates in an, at least, three-fold regulatory framework. First, the right to move of course enables geographical mobility. Its many manifestations constitute the legal framework for the individual to engage with geographical mobility. The famously abstract definition of work under today’s Article 45 TFEU in C-66/85 Lawrie-Blum, for instance, very practically rejected the domestic request to exclude a trainee, an archetype of youth employment, from the work-related right to move.7 This inclusive attitude towards young, marginalised workers was confirmed in decisions such as C-109/04 Kranemann, although C-357/89 Raulin and C-3/90 Bernini give domestic courts some discretion to specifically consider youth employment as not constituting genuine and effective activities, i.e., as being non-economic.8 For example, they can assess whether a trainee has sufficiently ‘familiarised’ themselves with their work.9 Similarly, C-293/83 Gravier developed a right to learning mobility. Although often understood as a citizenship right,10 this right was justified by the employment policy objective of learning mobility facilitating labour mobility,11 and has notably justified the EU’s vocational training action programmes, such as Erasmus+. This link with vocational training policy leads to the second EU instrument regulating young people’s geographical mobility: EU coordination of employment policies. Youth employment and young people’s geographical mobility are indeed at the heart of the EU’s employment strategy, including the coercive European Semester, which yields capacity to Europeanise domestic regulation in the field.12 The EU response to the euro-crisis, however, illustrates how little this tenet has been mobilised to support a more equal take-up of geographical mobility and the situation of those not crossing internal borders, which it can theoretically address. From 2010 onwards, the Commission recommended that youth employment policy should consist, inter alia, in the promotion of geographical mobility and the flexibilisation of young 7. Judgment of 3 July 1986, C-66/85, Lawrie-Blum, EU:C:1986:284. 8. Judgment of 26 February 1992, C-357/89, Raulin, EU:C:1992:87; Judgment of 26 February 1992, C-3/90, Bernini, EU:C:1992:89. 9. C-3/90 Bernini (n 38) para. 16. 10. E.g., Paul Craig and G De Búrca, EU Law: Text, Cases, and Materials (Sixth edition, Oxford University Press 2015) 24. Citizenship of the European Union. 11. Judgment of 13 February 1985, C-293/83, Gravier, EU:C:1985:69 para. 23; Gisella Gori, Towards an EU Right to Education (Kluwer Law International 2001) 41. 12. Ever since, European Council, ‘Extraordinary European Council Meeting on Employment, Luxembourg, 20 and 21 November 1997, Presidency Conclusions, 1998 Employment Guidelines’. On the Semester, inter alia, Council of the European Union (n 34).

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people’s labour rights,13 later identified as a push factor for crisis mobility.14 Young workers have been a target of deregulatory austerity policies,15 and the Brain Drain criticism inextricably links to this episode. At a time when the free movement rights of learners and jobseekers, future young workers, were retrenching,16 the active tenet of the EU’s promotion of geographical mobility consisted of ‘deregulation at home’ leaving both those who moved and those who did not in more vulnerable labour market positions. After 2013, the focus has shifted slightly and gradually away from regression through the adoption of a specific regulatory framework and quality standard for youth employment policies in the European Youth Guarantee. This guarantee also included geographical mobility and a second iteration has been adopted in 2020 in the Revised European Youth Guarantee. It, however, still struggles to simultaneously promote geographical mobility, make its take-up more equal, and keep sight of those who do not or cannot cross the EU’s internal borders. The third tenet that can be mobilised in the context of regulating young people’s geographical mobility are the EU’s structural funds, in particular the European Social Fund Plus (ESF+). Their objective of economic, social and territorial cohesion appears to make them the appropriate forum for promoting employment prospects throughout the EU – both for those who cross internal borders and those who do not or cannot. However, their impact is currently constrained by their limited resources, the questionable future of NextGeneration EU’s increase in resources, and the fact that the Member States apply for EU funding under the partnership principle, which restricts the EU’s ability to target its financial resources to youth employment policy. The imbalance of these three tenets of mobility regulation lies in the contrast between the increasing EU promotion of youth mobility and its limited capacity to support the creation of employment prospects, both abroad and at home, thus pushing the EU’s regulatory paradigm towards a one-sided and often passive promotion of geographical mobility.

13. E.g., European Commission, ‘COM (2011) 933 Final - Youth Opportunities Initiative’. 14. Julia López López, Alexandre de la Court and Sergio Canalda, ‘Breaking the Equilibrium between Flexibility and Security:

Flexiprecarity as the Spanish Version of the Model’ (2014) 5 European Labour Law Journal 18. 15. E.g., Jenny Julén Votinius, ‘Young Employees: Securities, Risk Distribution and Fundamental Social Rights’ (2014) 5 European Labour Law Journal 366. 16. On learners, Judgment of 18 November 2008, C-158/07, Förster, EU:C:2008:630. On jobseekers, Judgment of 15 September 2015, C-67/14, Alimanovic, EU:C:2015:597.

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Two Exemplary Sources for a More Sustainable Regulation of Young People’s Geographical Mobility The aim of this third section is not to define a more sustainable regulation of intra-EU geographical mobility, nor to describe how it could be developed, but to point to existing, exemplary sources that can lead into this direction with regard to youth mobility. Normatively, the neglected Article 47 TFEU, unchanged since 1957, intrigues. This provision, within the fundamental freedom to move, calls for a common exchange programme for young workers, a specific regime for their geographical mobility. Although it has never been applied or interpreted, the provision’s history points to a fascinating source. If the free movement of workers relies on the principle of equal treatment, is not Article 47 TFEU a call for ‘further action to support the movements’ of young workers?17 Although rejected by the Member States, the early Commission sought to develop this provision by creating a support structure for trainees’ geographical mobility.18 This underlines that the current one-sided and often passive promotion of young people’s geographical mobility is not architecturally rooted but relies on a politically chosen understanding of free movement. Instead, Article 47 TFEU gives space for thinking about a regulation of young people’s geographical mobility that enables access to the same general free movement rights as others, while allowing to address the specific risks that come with youth mobility.

The European Social Fund Plus is a case in point for strengthening the EU’s capacity to promote the employment prospects of those young people who do not cross internal borders

Practically, the European Social Fund Plus is a case in point for strengthening the EU’s capacity to promote the employment prospects of those young people who do not cross internal borders. For the first time, Article 7(6) of Regulation 2021/1057/EU includes an obligation for each Member State to allocate an ‘appropriate share’ of ESF+ shared management resources to youth employment.19 Those Member States 17. Rolando Quadri, Riccardo Monaco and Alberto Trabucchi, Trattato Istitutivo Della Comunita Economica Europea : Commentario. (Giuffre 1965) Articolo 50. 18. Commission Européenne, ‘V/COM(62) 31 Final - Proposition de La Commission Pour Règlements et Directives Concernant Les Premières Mesures Pour La Réalisation de La Libre Circulation Des Travailleurs Frontaliers et Des Travailleurs Saisonniers à l’intérieur de La Communauté Dans HICA.H.CM2.1964.1160.1’. 19. Shared managements accounts for almost all ESF+ resources. (EUR 87 319 331 844 of the ESF+’s financial envelope for 20212027 of EUR 87 995 063 417). European Parliament and Council, ‘Regulation 2021/1057/EU of the European Parliament and of the Council of 24 June 2021 Establishing the European Social Fund Plus (ESF+) and Repealing Regulation 1296/2013/EU, OJ L 231, 30.6.2021, p. 21–59’ Article 5.

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with a rate of young people not in employment, education nor training above the Union average are even obliged to allocate over 12.5% of these resources to youth employment. The implementation of this promising obligation, however, is limited by institutional practice as the Commission accepts a variety of appropriate investments ranging from none, such as in Denmark, Poland or Czechia, to substantial commitments of those not covered by the 12.5% obligation.20 This undermines this youth employment conditionality’s potential to complement the regulation of young people’s geographical mobility with a targeting of EU funds at youth employment policy. In summary, this Long-Read highlights the importance of moving from free movement law to the regulation of geographical mobility through the concrete example of Brain Drain and the EU’s role in young people’s geographical mobility. What matters is moving to a more sustainable regulation of geographical mobility. It may be the task of scholars and policymakers to work out what such a more sustainable regulation of mobility should look like. The Brain Drain criticism underscores that we have not yet reached this stage. I also underline some exemplary sources for moving in this direction with regard to young workers, although a more sustainable regulation of geographical mobility is likely to imply broader changes to the EU’s constitutional set-up, such as a strengthening of its financial employment policy aspects, or greater engagement with the efforts of local, regional, national and global regulators in this field.

20. The Partnership Agreements can be retrieved here, accessed 22 March 2023.