Weekend Edition Nº53 by eulawlive

Nº53

APRIL 10

2021

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SPECIAL ISSUE LEGAL SCHOLARSHIP IN EU LAW A TRANSNATIONAL OVERVIEW

MIGUEL POIARES MADURO

HAS THE LAW OF THE EUROPEAN UNION BECOME EUROPEAN LAW? FRANZ MAYER

EU LAW SCHOLARSHIP FROM A GERMAN PERSPECTIVE: A TALE OF PARALLEL UNIVERSES? ARACELI TURMO

FRANCE: A CASE STUDY IN NATIONAL EU LEGAL SCHOLARSHIP DANIELA CARUSO

LOVING IT TO PIECES: EU LAW IN U.S. LEGAL ACADEMIA, REVISITED

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Has the Law of the European Union Become European Law? 1

Miguel Poiares Maduro

ted that it is the legal culture that provides meaning When I was asked to write this comment with a reto a legal text. e same legal texts can acquire very gional perspective on the development of European different meanings depending on the legal culture. Union legal scholarship the irony did not escape me As such, whether EU rules actually have the same of being asked to comment on the common while asmeaning across the European Union depends on suming that it’s not common. I decided not to focus whether there is actually a European legal culture. In on how Portuguese or Southern European legal other words, has the body of rules scholarship has evolved but, insof EU law actually translated into tead, to use them as the viewHas the body of rules a European law? point from which to discuss the development of EU legal schoof EU law actually EU law has now been successfully larship in general, with the main integrated both into all national leaim of ascertaining whether thetranslated into a gal orders and into virtually all lere is in fact a European legal culEuropean law? gal disciplines. From administrature behind EU legal scholarstive law to contracts, from envihip. ronmental law to constitutional law, EU law is now part of all legal disciplines. is is at a large and substantial body of legal scholarsre ected in its incorporation into the day-to-day lehip has emerged around the Law of the European gal practice of judges, lawyers, administrators. EU Union is beyond doubt. But does it re ect or is it suplaw has succeeded in becoming the law of the land ported by a European legal culture? e existence of across the territorial and disciplinary borders of the a European legal culture is addressed in a rather parapractice of law in Europe. But is it the same EU law doxical way by legal scholars in Europe: literature that we are talking about in those different discipliabounds highlighting how common are the diffenes and countries? Does that incorporation take plarent national legal cultures. At the same time those ce under the same legal culture? national legal cultures have o en been presented as a major obstacle to further integration and, in partiWe know, for example, that most EU law is now liticular, to the development of the identity necessary gated and adjudicated by national courts. e cases to support a genuine European Union, including in that are actually decided at the Court of Justice of the legal dimension. Paul Kahn, who has worked exthe European Union are a tiny fraction of the cases tensively on the cultural study of law, has highligh1. Professor at the School of Transnational Governance at the European University Institute in Florence. From 2003-2009 he served as Advocate General at the Court of Justice.

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e uniform application of EU law requires sharing the legal culture that shapes its interpretation and application

where EU rules are interpreted and applied. Unfortunately, we lack precise statistics to measure the distribution of EU law cases between national and EU courts, but some estimations point to more than 95% of EU law related cases being decided solely at the national level. e uniform application of EU law largely depends, therefore, on the extent to which those rules are interpreted in the same manner by the different national judiciaries (not to speak of the different national administrations). is will only be the case if they share the same legal culture in interpreting and applying EU law. To a large extent, it was to that to which the Court of Justice was referring, albeit in rather different words, in its landmark ruling in CILFIT. In it, the Court alerted national judges to the need, when interpreting and applying EU law on their own, to be convinced that it would be interpreted in the same manner by other national courts and the Court of Justice itself. Notably, the Court of Justice alerted national courts to the need to consider that the legal concepts that exist under national law may have a different meaning under EU law and that this meaning is a product of language but also context. e Court of Justice seemed to be well aware that the uniform application of EU law required much more than the acceptance of supremacy and direct effect: it requires sharing the legal culture that shapes the interpretation and application of those rules.

and increasingly been involved in methodological and legal thinking disputes) and nationalisation (referring to the extent to which the incorporation of EU law into national legal orders both changes the legal cultures of the la er but also acquires diﬀerent meaning as part of those legal cultures). I will brie y describe these three variables and their evolution.

Diversi cation e story of the evolution of EU legal scholarship is also a story of dispute for the control of a new discipline by diﬀerent traditional legal disciplines (and their diﬀerent communities of lawyers). EU law started as a domain of international lawyers. Perhaps, the avant garde of a new form of international law (as the Court of Justice described it early on, ‘a new legal order of international law’). Another group of legal scholars that invested, early on, in EU law were administrative law scholars. As the competences of the Communities, now the Union, grew, EU law extended into other disciplines. Received initially, in some disciplines, like an invader challenging the established order that had taken decades to perfect it also started to a ract those that, within those disciplines, saw it as an opportunity to challenge that order. Private law is a particularly good example, in southern Europe but not only. ere are those that perceived EU law as a threat to the dominant legal culture of private law and have resisted EU law in good part to resist any substantial transformation of the paradigms embodied in that legal culture. A

e story of the development of EU legal scholarship is a story where success and failure not only alternate but are actually profoundly interweaved in creating such legal culture. e three variables that have, in my view, more profoundly in uenced this story are diversi cation (referring to EU law expansion – and incorporation by – diﬀerent legal disciplines), methodological and doctrinal pluralism (referring to the extent to which EU law has both evolved from uncritical and acceptance to contestation

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It created a ba le for control over EU legal culture between the ‘purists’ and ‘the new converts’

funny but representative example of such resistance in Portugal is the refusal by one of the most well known private law professors in the country to use the expression ‘Directive’…

Scholarly and Methodological Pluralism e tale of how, in its early days, EU law was critically acclaimed, with legal scholars being the apostles of the prophets seated in Luxembourg has been told and retold. When Hjalte Rasmussen published On Law and Policy in the European Court of Justice he was almost a solitary voice criticising the Court of Justice in an otherwise enthusiastic and supportive, albeit small, community of legal scholars. ose days are long gone, however. is is a natural process. First, the early ‘se lers’ of EU legal scholarship had an invested interest in the success of this law. eir own success was dependent on EU law’s success. ey were preachers of the gospel of Luxembourg. O en brilliant, commi ed and honest but ‘preachers’. As EU law evolved and its scholarly community multiplied, the set of incentives has now been reversed. In order to be noticed you have to diverge. You have to oppose. You have to be critical.

But there were also those that were sympathetic to EU law precisely because they understood it as the opportunity to challenge that dominant legal culture. e diversi cation of EU law into the many disciplinary elds of law created an opportunity to challenge the dominant cultures in those legal disciplines. But this diversi cation also aﬀected EU law. In the rst place, it created a ba le for control over EU legal culture between the ‘purists’ and ‘the new converts’. e purists are those that had started to see control over their discipline being challenged by a myriad of EU law specialists: EU constitutional lawyers, EU private lawyers, EU environmental lawyers, EU trade lawyers, EU administrative lawyers and so on.

It’s like democracy: when you don’t have it, you ght for it and when you obtain it, you praise it. But as it consolidates itself, you start complaining of how it works. But that’s not a bad parallel for EU law and the Court of Justice. I don’t agree with those that claim that the Court is a victim of its own success. It is not a victim, it is instead paying the natural price of success.

Diversi cation created ba les for the control of legal culture within existing legal disciplines and a ba le for the control of European legal culture by diﬀerent disciplines.

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e Court of Justice is not a victim of its own success, it is paying the natural price of success

EU methodological innovators that many young legal scholars (like myself) broadened their conception of the law and engaged with new methodologies that they then brought back home. Consider the seminal work of Joseph Weiler. He demonstrated how the insights from other disciplines could be used not only to understand the law be er but, more importantly, to change the actual practice of the law. Joseph Weiler's lasting contribution for EU legal scholarship is not to have reinvented our thinking about EU law but to have reinvented how to think and practice the law. Although this is one of the most signi cant examples (and, personally, the most signi cant) of how EU legal scholarship has contributed to a new European legal culture, it is not the only one. And I could add the increased mobility of law students and faculty. is is not limited to EU law but it was triggered by it.

is success has also a profound impact on the legal culture(s) in Europe. It has gradually brought with it a community of legal scholars that is transnational. Here, this intersects with the phenomena of diversication, as this community also increasingly cuts across legal disciplines. is re ects itself in the wide myriad of law journals regarding EU law but also many pieces where legal concepts are discussed in a manner that can be applied, or actually applies, to both EU and national law. is is particularly revealing in three concurrent phenomena that we see in Portugal and southern European legal scholarship (but also, I would claim, across Europe): there is a multiplication of the number of English or dual language law journals, including on legal subjects beyond EU law; this is also a re ection of the fact that the best young legal scholars increasingly prefer to publish in English and reach a European, if not global, community of scholars; nally, that is the case even when they don’t publish on EU law. e la er is the best possible news for a European legal culture. It means that legal concepts born and developed in other legal disciplines are increasingly discussed and framed by a European community of scholars.

e Nationalisation of EU Law As mentioned, EU law enters into the national legal orders at least as much as a consequence of the doctrines of supremacy, direct eﬀect and eﬀectiveness as of the terms under which it is ‘adopted’ by national legal actors. National courts have famously been described as co-responsible for the success of EU law, not only by the cases they refer to the Court of Justice but also for pu ing their enforcement powers at the service of EU law. But the other side of this is that they also shaped what EU law is. e agenda of the Court of Justice is, in good part, determined by national courts.

At the same time, EU legal scholarship was also a source of methodological reform in national legal cultures. is impact was not absent from controversies and ba les within EU legal scholarship. Consider the debate between classical doctrinal lawyers and law and context scholars. At the same time, EU law provides a meeting ground for these diﬀerent approaches to engage with each other. It was through

Part of the story will present them as participants in the collective construction of a European legal culture mediated by the Court of Justice. But a diﬀerent part of the story may focus, instead, on how diﬀerent national legal cultures may be appropriating

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Court has only very recently (coincidentally, not long a er the German Constitutional Court’s (in)famous decision in the PSPP case) decided to refer its rst case to the Court of Justice. It did so, adopting an approach similar in theory to that of its German and Italian counterparts, but making it clear that it is only in very exceptional cases (such as when the unity of the State may be in question) that it will not defer to Luxembourg.

EU law in rather different ways, providing it with very different meanings. is is a difficult but necessary exercise to be undertaken. e truth is that we are far from knowing what EU law actually is in all corners of Europe. So far, what one can say is mostly impressionistic. e Portuguese case illustrates a reality of asymmetry in the incorporation of EU law. Different areas of the law, and the courts with competence to adjudicate on them, have taken rather different approaches to EU law. One way to measure this is by looking at the references made to the Court of Justice. While the Supreme Administrative Court has, for a long time, developed a practice of referring to the Court of Justice, leading for example to signi cant changes in national tax law, the Constitutional and Supreme Courts had, until recently, never referred to the Court of Justice. is is particularly surprising in the case of the Supreme Court which was regularly confronted with the need to provide a nal interpretation on legislation transposing European Directives. In some of these cases (such as those involving the concept of transfer of an undertaking) the Supreme Court even adopted an approach that could be described as of strategic neglect. It ignored the case law of the Court of Justice to continue to give, to certain legal concepts used in EU legal texts, the meaning they used to have under Portuguese law and not the meaning the Court of Justice wanted them to have under EU law.

Perhaps the most interesting insight one can get from the past Portuguese Constitutional Court’s approach to EU law is, however, that the biggest challenge to EU law may not take a confrontational form but an evasion one. at was particularly visible in the resistance of the Court to refer to the Court of Justice any of the many cases on its ‘jurisprudence of the crisis’ when it had to decide on the constitutionality of many measures imposed by the Financial Assistance Programme agreed by Portugal and the EU. It was able to do so by construing EU Law obligations as purely obligations of result, therefore leaving the State free to determine how that result is achieved. For the Court, the legally binding character of EU obligations was limited to the objectives or goals imposed on the Member States. is le the Court free to control the means chosen by the national legislature exclusively in light of the Constitution. It allowed the Court to operate as if the realm and interpretation of the national constitution were le untouched. At the same time, it also highlighted that, in any event, the principles of the Portuguese Constitution are also part of the general principles of EU law. Since the principles applied, in the review of the contested measures, are common to the national constitutional order and the European Union legal order the Court assumes that no con icting

It should be said, however, that the Supreme Court has increasingly adopted a more engaging and loyal approach to EU law. Times of neglect may have passed. e same may occur with the Constitutional Court. A er many years of resistance, the Constitutional

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We are still far from a European legal culture supporting EU law

e Court remains oblivious to the composite, plural, discursive, multi-level (whatever you want to call it…) nature of the EU legal culture. In this, it a ributes a meaning to EU rules that allows it to preserve intact the meaning it gives to national constitutional rules. Of course, it is EU law that pays the price in terms of its genuine uniform application.

obligations could emerge from the national constitution and EU law. is ignores, naturally, that though the principles may be common, their interpretation might not always be the same. e approach of the Constitutional Court strictly separates the hermeneutics of the national constitution from those of EU law. EU law obligations are not used, in any way, to aﬀect or alter the interpretation of national constitutional provisions. For these purposes it is as if EU law did not exist. e interpretation of the national constitution remains fully immune to EU law. As the Court itself clearly states: ‘there are no consequences from the point of view of the application of the constitutional norms’.

What is remarkable is that such autarkist dynamics in the approach to EU law are not unique to the Portuguese Constitutional Court during the jurisprudence of the crisis. Other constitutional courts have, albeit to diﬀerent degrees, demonstrated a tendency to develop such approaches. ey have approached EU law from the point of view of their national legal culture. It’s the case of the German Constitutional Culture. Interestingly, these diﬀerent approaches coincide. It is therefore true that European national legal cultures have a lot in common. But, paradoxically, this commonality does not contribute, in this case, to a common European legal culture, to the opposite.

e problem is that such a conclusion is possible because of the Constitutional Court’s interpretation of EU Law. e Constitutional Court was interpreting EU Law when it stated that EU law only imposed, in this domain, obligations of result or that the meaning of the legal principles of equality, proportionality and legal certainty is the same under the Portuguese Constitution and EU law. In all of this EU law is interpreted so as to protect the meaning traditionally given to national constitutional rules. It’s the traditional national legal culture that prevails.

is is a sober recollection that we are still far from a European legal culture supporting EU law. What we see is a tension between the identitarian elements of legal culture, that are pulling national legal cultures apart from the EU, and the discursive elements of the emerging community of European legal scholars that contribute to a European legal culture. How it will end, we don’t know.

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EU law scholarship from a German perspective: A tale of parallel universes? Franz C. Mayer

scholarship in Germany and from Germany should not be that diﬃcult to explain. Looking closer, the picture appears to be more complicated, though. ere are at least two versions of the story.

One of the paradoxes of EU law scholarship is that there is actually no such thing as a monolithic body of EU law scholarship although EU law is about a common legal universe. Beyond the controversies and fractions that will come with any legal discourse, researching and teaching EU law still appears to be surprisingly diverse. It is hard to say whether the dividing lines are related to different legal cultures and traditions, or just different scholarship cultures in the EU; whether the dividing lines run between different languages or correspond to different Member States.

German EU law scholarship can easily be told as an ongoing success story

e success story

e story of German EU law scholarship can easily be told as an ongoing success story. In that version of the story, one would emphasise that a er more than 70 years of European integration, the eld is well established and has its place in the landscape of German legal academia. Numerous EU law commentaries could serve as evidence of that success, with commentaries being the hallmark of German legal academic writing. ere are also well-established German language EU law journals such as Europarecht and the multi-volume EU law encyclopedia, Enzyklopädie des Europarechts. Commentaries, law reviews, Handbücher, the insignia of legal academic achievement – according to German standards – are all there. Even the in uential Staatsrechtslehrervereinigung , the association of German public law scholars founded in 1922,

Germany is one of the founding Member States of the European Union and the largest Member State with more than 80 million inhabitants, a size re ected in more than 40 law faculties. German is the language that has the highest number of native speakers in the EU. Considering this, the concept of ‘German EU scholarship’ and the assumption of its impact on EU law has some plausibility. A er more than 70 years of European integration, the role and shape of EU law

1. Prof. Dr. jur., LL.M. (Yale), Chair of Public Law, European Law, Public International Law, Comparative Law, and Legal Policy, Law Faculty, Bielefeld University, Germany (franz.mayer@uni-bielefeld.de).

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It can also be observed that EU law is not at the centre of academic a ention in Germany

seems to have accepted the importance of EU law many years ago, by introducing a working group on European constitutional law. e importance of European integration law, a eld that emerged out of nowhere, has nally sunk in, and this has strengthened the role of German EU law scholarship. Today, each and every German law faculty will have a chair that is dedicated to EU law. Beyond that, EU law is not con ned to a small circle of specialists. Numerous German public law professors will also have a venia legendi of EU law in their academic portfolio. Mainstream law journals regularly report on EU law ma ers. e federal statute on the judiciary – Deutsches Richtergesetz – that also lays down the mandatory elements for the curricula of law faculties was amended some time ago (Section 5a) in order to include EU law as a mandatory subject for the state exam that is the nal, end of studies-exam for all German law students. And, as ultimate proof of relevance and weight, the powerful German Constitutional Court, a er rst ignoring, then resisting European integration in Solange I, and since the mid-80s Solange II, has become a European constitutional law court, regularly dealing with EU law related cases and promoting the perception that EU law ma ers. is should be bene cial for German EU law scholarship.

An alternate EU law universe? It is also possible to paint the picture in darker colours, though, starting out from a simple observation and a simple question. e observation: the law of the European Union is not at the centre of academic a ention in Germany. A research institute at the level of a Leibnitz Institute or a Max Planck Institute speci cally dedicated to EU law does not exist in Germany. ‘Clusters’ of EU law scholars do not exist, one per faculty is considered enough, sometimes more than enough. e younger generation of scholars seems to be more a racted to international law than EU law. ‘Genuine’ EU law academics are increasingly few and far between, at least this is a perception I hear from people who recruit EU law experts for parliamentary hearings. e question: How is it that the largest Member State and German language contributions on EU law are not more present on the European stage of EU law scholarship? ere are numerous possible answers to this. One of the more plausible ones could be that in Germany, EU law is to some extent a victim of its own success.

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distinct and particular about EU law and EU law scholarship. A deep understanding of EU common market law, of the case law of the Court of Justice and of the constitutional law elements of EU law may be core elements of this kind of EU scholarship. In my view there is also an aspect of distinctiveness that has to do with a particular intercultural sensitivity that emerges when one deals on a regular basis with the peculiar paradox of a law that is insisting on the unity of EU law in a multilingual context against the background of diﬀerent legal systems in the Member States.

Let me explain.

Victim of its own success I Maybe EU law has been too successful in quantitative terms. Over the years, a huge body of secondary law and numerous treaty amendments have led to a diﬀerentiation of EU law. Nobody can seriously claim today that he or she is mastering EU law in all its shapes and forms. EU competition law is an example for EU law that emerged as a distinct eld quite early on with the potential to keep an entire scientic community busy. e same applies for EU asylum law, and a more recent example would be EU data protection law, where the EU GDPR brings EU law-specialists and data protection law people who have no particular background in EU law together. Similar eﬀects can be described in the private law context, up to the point of detecting a new – and arguably: distinct – eld of ‘EU private law’.

is brings me to a particularity of German EU law scholarship: e size of the legal community. With more than 40 law faculties, German academia will always be tempted to be self-suﬃcient. is also applies to EU law: German EU law scholarship does not need interlocutors from abroad, German EU law academics can easily stay among themselves. ere is a lack of incentive here. Just one example: publishing in English is still not really career enhancing in Germany, it may even be career limiting. e risk with such a German-EU law scholarship bubble is that it may develop constructs and theories that

I would still argue that it makes sense to speak of ‘EU law scholarship’. ere are speci c common principles of EU law, be it primary or secondary, that justify the assumption that there is something

German EU law scholarship does not need interlocutors from abroad

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e German academic system does not really allow one to specialise in EU law only

are detached from the more general EU law discourse. Note that all the German EU law commentaries are wri en in German, the same applies to the EU law related journals. is is not a German phenomenon: EU law related journals being addressed primarily at a (limited) domestic audience are also an issue elsewhere - just look at France. e Dutch case appears diﬀerent and seems to prove that there may be a diﬀerent way. It is probably not a coincidence that the Common Market Law Review, published in the Netherlands, in English, is o en named as the most prominent - some would even say the only EU law journal with a genuinely EU wide audience.

plex as the German academic system does not really allow one to specialise in EU law only: a core aﬃliation with public law (or private law or criminal law, but EU law remains public law driven) will be the more important part of the venia legendi, and EU law will come on top of that and not necessarily re ect a genuine research focus. at is why the high number of EU law-venia legendi among younger scholars may be misleading. e more or less subtle antagonism between more traditional public law scholars and genuinely EU law oriented public law scholars is still around.

Victim of its own success II European integration law may also have been too successful in qualitative terms. In 1963 the Court of Justice con rmed in Van Gend en Loos that European integration law was distinct from standard public international law, a reading that the German Government of the time already suggested in the rati cation legislation in the 1950s. Mechanisms such as direct eﬀect and primacy led to a highly eﬀective body of law, increasingly closer to constitutional law than to classical international law.

is is where the weight of tradition comes in. German legal scholarship is heavily shaped by tradition. Tradition explains university structures, faculty structures, the established division between private law, public law and criminal law professors which still de nes the sub-structures of groups within faculties, stabilised by the genuine or perceived relevance of professional associations such as, for public law, the Staatsrechtslehrervereinigung. EU law and EU law scholars are at odds with these structures.

At some point, the saying goes in Germany, EU law became simply too important to leave it to a bunch of EU law specialists. at’s when mainstream public law became interested in and concerned with EU law. at could be called a – more or less – friendly takeover, an ‘EU law mainstreaming’ which did have its positive aspects, in particular in terms of recognising the importance of the eld in the curricula of law faculties (see supra). At the same time, the mainstream public law scholarship perception of EU law being something ‘alien’, ‘intruding’ was never completely overcome. All this is even more com-

Karlsruhe… And then there is the role of constitutional law. In a country such as Germany that has produced a concept such as ‘constitutional patriotism’, the importance of the constitution is hard to overestimate. In addition, the constitutional law dimension in Germany involves a peculiar player that led the EU law

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related legal issues at stake to a e fact that the German German Constitutional Court diﬀerent dimension. e fact that decided in the two cases ‘Right to Constitutional Court the German Constitutional be forgo en I and II’ to take the Court has become a court that Charter of Fundamental Rights has become a court deals with EU law on a regular baas a yardstick in certain EU relasis impacts on EU legal scholarsted cases, applying and thereby that deals with EU law hip in multiple ways. Note that interpreting the Charter, which on a regular basis the German Constitutional means actively stepping into the Court’s case law is not shaped by turf of the Court of Justice. is impacts on EU legal EU law scholars, to put it mildly. has the potential to enhance the scholarship in e judge rapporteur for the Gertrend of the last 10 years in German Maastricht decision came many: to look at EU law rst and multiple ways from tax law, the judge rapporteur foremost through the lens of Gerfor the Lisbon decision from admiman constitutional law, with the respective eﬀects on German EU law related schonistrative law. Against that background, the biggest larship. success of EU law in Germany – being of major concern for the German Constitutional Court – can also be interpreted as its biggest problem: Since the beSome concluding thoughts ginning of the Euro crisis in 2010, EU law related scholarship in Germany has increasingly been abSo where does this leave us and what is the future of sorbed by interpreting and explaining the German German EU law scholarship? Constitutional Court’s EU law related decisions, its a ention being de ected from core EU law. With all Let me rst emphasise that there still is a lot of gea ention turned to the German Constitutional nuine EU law expertise in and from Germany. is Court and dramatic decisions such as the PSPP veris also part of the success story I started out from: dict of May 2020, where the German court basically the lawyers in the relevant divisions of the Federal completely trashed ECB and Court of Justice acgovernment, in the Ministry of Economics (repretions as ‘ultra vires’, the case law of the Court of Jussenting Germany before the Court of Justice) and at tice and the legal developments at the European lethe Federal chancellery, know their EU law. German vel risk being neglected. It is no coincidence that lawyers in international law rms dealing with EU one of the German voices perceived abroad as spealaw and inside EU institutions stand out – although king for German EU law scholarship is Dieter note that there has never been a German lawyer heaGrimm, who is actually not a EU law scholar, and a ding the Legal Service of the Council or the Comformer constitutional court judge, albeit not in charmission, which is particularly striking when compage of EU law during his time on the bench. red to the impressive French record in that respect. Nevertheless, there is evidence that German EU law scholarship remains below its capabilities, which is actually quite stunning for such a large Member State with such a law-driven political culture.

With the latest turn in the EU law related case law of the German Constitutional Court, the trend of absorbing EU related legal-academic resources in Germany may reach a new level: At the end of 2019, the

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As far as the concept of distinct ‘German EU law scholarship’ is concerned, it all may boil down to another paradox: arguably, German EU law scholarship rst needs to become more European (again) in order to be perceived (again) as an original and distinct German contribution to the development of EU law.

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France: A Case Study in National EU Legal Scholarship Araceli Turmo

larship. I must note that there is also a clear distinction between French and French-language scholarship in EU law and I will focus on the former. For instance, although collaborations are common and some journals are common to French and Frenchspeaking Belgian academic circles, the contribution of a Belgian scholar to a French EU law conference can still be considered an ‘international perspective’, marking the ever-present national divides in our European area of study!

Any analysis of EU law scholarship in France must begin with an acknowledgement of the initial contribution of French lawyers to the early development of European Community Law. Lawyers trained in the French language, whether French, Luxembourgish or Belgian, had a decisive role in shaping the Treaties as well as in the early developments of EU case law. ey were also among the pioneers of EU law scholarship, forging a path that gradually evolved into a speci c area of legal practice, research and teaching. Prominent members of the European Court of Justice such as Pierre Pescatore or Robert Lecourt helped shape not only EU law but EU law scholarship in the French language. is impact was increased by the choice of French as a working language for the Court and a style of judicial writing heavily in uenced by the tradition of French administrative law, and explains the Court’s signi cant reliance on French legal concepts to form the early building blocks for certain areas of the law, such as procedural law. ese features initially gave French-trained lawyers a decisive advantage in understanding and constructing core concepts of EU law. e in uence of French law has since then decreased signi cantly, although some of the language of EU law may remain more familiar to French lawyers than to those trained in other legal traditions. EU law scholars in France still retain a sense of the importance of the French contribution to the development of the EU itself, but also of EU legal scho-

Perhaps a sense of the importance of France’s role as a founding Member State helped pave the way for the success of EU law as a eld of legal teaching and research in France. is undeniable success nevertheless should not obscure a number of weaknesses which must be addressed.

EU Law in French Universities EU law is a well-established area of research in France and specialised scholars form a thriving community, whose growth has been facilitated by the establishment of specialised EU law postgraduate programmes in most law faculties. EU law is considered a necessary component of legal training, although the eld has not been as successful in establishing its in uence over some of the avenues that lead to the legal professions at a postgraduate level. For instance, the level of European law required to go through

1. Associate Professor of EU Law, Deputy Head of the Maison des Sciences de l’Homme, University of Nantes, France (araceli.turmo@univ-nantes.fr). Member of the Editorial Board, EU Law Live.

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Although EU law is increasingly taken into account in all areas of legal scholarship, it has remained a speci c eld of research

the examinations and training which lead, through the École nationale d’administration, to the top civil service positions - including administrative law courts - remains relatively basic and likely insuﬃcient.

French Academia and EU Law e disconnect between the national discourse and the topics and debates discussed in more international fora of EU law scholarship remains a strong feature of French scholarship, perhaps more so than in certain other Member States. French EU law scholars o en focus on issues or on ways of framing discussions that feel very ‘French’ and do not engage suﬃciently o en with the international debates happening simultaneously. e number of contributions made by French authors to Englishlanguage publications or international conferences is very low relative to the number of scholars working in the eld in France. Conversely, it sometimes feels as though discussions happening in Englishlanguage journals have no impact on the concerns of French EU law scholarship. Because of this, French research can sometimes seem to lack relevance in the broader international context, while simultaneously the diversity and quality of the work produced in France has li le visibility beyond the French-speaking context. is lack of engagement

It is considered necessary for law faculties to have at least one professor specialising in EU law, o en two or three, or even seven in the case of the Université Paris 2 (Panthéon-Assas), and there are several prestigious research centres specialising in EU law throughout the country (for example in Paris 1 Panthéon-Sorbonne, Strasbourg, Lyon, Montpellier, Bordeaux). All the major legal publishers in the French language have EU law journals and all legal journals report on EU law issues. Every year, the Annuaire de droit de l’Union européenne presents an overview of academic writings on all areas of EU law. Although EU law is increasingly taken into account in all areas of legal scholarship, it has remained a speci c eld of research, distinct from both public international law and French law.

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national journals are not particularly valued in early career advancement, and writing in English is actively discouraged (only one English-language paper may be presented by a candidate at the prestigious concours de l’agrégation), whereas academic publications in areas of French law not connected to one’s speciality are highly appreciated. As a result, young scholars wishing to rise up the ranks of the French academic system will only engage in Englishlanguage publications and conferences to the extent that it does not hinder their ability to teach and write for a French audience. Once they are well-established and free from these constraints, the EU law scholar whose formative years were spent writing exclusively in French, for a French audience, will naturally nd it more diﬃcult to transition into a more international outlook. Younger generations are challenging this and it is becoming more common to take part in English-language scholarship during one’s PhD. However it remains impossible to signi cantly deviate from the established criteria and progress in an academic career in France.

with the wider EU law debates is unfortunate and may be partly to blame for the signi cant reduction in the in uence of French scholars over the eld. It is due to a number of factors, including the language barrier, although this is not as great an obstacle as one might suppose judging by the very low number of contributions from French scholars to publications in other languages. One signi cant factor in my view is the very rigid early stages of the academic career in French law. First of all, it remains all but impossible to be hired as a lecturer or professor in a French law faculty without a PhD dissertation wri en in French and complying with formal requirements which vastly diﬀer from those of most other European countries, such as dissertations being signi cantly longer or the infamous ‘binary’ structure. In practice, this makes it impossible to obtain a permanent academic position in France without having wri en a dissertation supervised by a French professor, with the French job market in mind. An applicant holding a PhD from a British or Dutch university has no chance of making it through the diﬀerent stages of the selection process. Similarly, due to these peculiarities as well as the very heavy teaching workload required of PhD students (and appreciated by hiring commi ees) at the expense of their ability to write papers, the converse would likely be true for an applicant holding a French PhD looking for a job in a British or Dutch university.

EU law as a whole is perceived as ‘public law’

EU Law as Public Law Another factor, also connected to the hiring processes in French academia, is the enduring strong association of EU law with public law, in a system where private and public law scholarship remain, for the most part, rmly separate. Although some areas of EU law scholarship, such as competition law, are well-established as components of the private law sphere, EU law as a whole is perceived as ‘public law’. All law professors in France are hired either as ‘private law’ or ‘public law’ professors, with the exception of history of law. is means that EU law acade-

International careers are therefore extremely rare, and experiences abroad are not valued as much as a signi cant experience of teaching constitutional or administrative law. Publications in renowned inter-

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e tendency to focus on aspects of EU law which may be related to French public law topics and perspectives also has an impact on the ability of French scholars to take part in the wider EU scholarship debates

EU law, which remains rmly under the public law umbrella. Of course, this tendency is also related to the lasting belief in the in uence of French administrative law on EU law. Although the historical proximity has some advantages as it allows the Frenchtrained lawyer to recognise familiar elements in EU law, it also produces adverse eﬀects when it increases the temptation to apply national frameworks to EU law. ere is, to this day, a strong tendency in some French EU law scholarship to treat French and EU administrative laws as a single whole, which may be apprehended (mainly) through concepts and approaches which are speci c to French public law.

mics in France need to prove their worth in French public law (or, very rarely, in French private law). e concours de l’agrégation selects generalists within the public and private law subdivisions. To succeed, an EU lawyer will need to take examinations not only in their eld but also in areas such as administrative law, constitutional law or public nance. e system therefore encourages young academics to think of themselves as French public lawyers and not only as EU law specialists, which in turn has an impact on the way in which they approach EU law and on the topics they choose to study. Issues and frameworks which are typical of French administrative law thus become over-represented in EU law scholarship. Concurrently, some areas of EU legal research which are more distant remain understudied or, at any rate, reserved for other areas of scholarship that are disconnected from the ‘core’ of

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law bend, it has traditionally been more diﬃcult for French scholars to take part in the discussion. Here, too, change is slowly taking place as younger academics explore the increasingly diverse topics of EU law. EU criminal law is a good example of the current transformation. It a racts scholars from the criminal law and EU law spheres equally, especially among younger generations, and is eﬀectively calling into question such separations. Nevertheless, systemic barriers remain a signi cant obstacle to the exploration of the diversity of EU law topics and to discussions across the public/private law divide.

French EU law scholarship should become ‘more European’ in order to regain some of its lost in uence Conclusion As mentioned above, the solutions to the lack of connection of French EU law scholarship with the wider international debate are already being found and new generations of scholars increasingly aspire to more European careers and collaborations. However, in the current context, the systemic impediments remain very powerful and one can only hope that law faculties and national authorities will not stand in the way of the ambitions of younger scholars. French EU law scholarship remains of very high quality and should be making a greater contribution to the eld beyond its geographical borders. As Franz Mayer suggests in this issue regarding the German context, French EU law scholarship should become ‘more European’ in order to regain some of its lost in uence.

Paradoxically, the enduring slant towards French public law within EU law scholarship does not mean that EU law scholars have a signi cant amount of inuence within public law institutions such as the Conseil constitutionnel or the Conseil d’État. Although dialogue has increased signi cantly over the past 20 twenty years, the issue of the ‘encroachment’ of EU law into national law remains a sensitive topic. e reaction of the President of the Litigation Section of the Conseil d’État (2) a er the Commission v France ruling in October 2018 provides an excellent illustration of the distance between the members of the Conseil and EU law scholarship. However, one can hope that the arrival of newer generations of lawyers and judges, more used to treating the interactions between EU law and French law as a normal feature of their practice, and of scholars more used to discussions across the lines of areas of scholarship, will gradually improve the situation.

2. S. Gervasoni, ‘CJUE et cours suprêmes : repenser les termes du dialogue des juges?’, AJDA 2019, p. 150.

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Loving it to Pieces: EU Law in US Legal Academia, Revisited Daniela Caruso

cles analysing the legal nature of the European e Editors of this Special Issue have kindly invited Union, as well as its signi cance in the study of reme to update earlier re ections on the state of EU gional governance, would be published not just in law in US legal academia. For a variety of reasons, it Europe, but also in the agship journals of top US is important to me not to mislead the reader with law schools. A signi cant cohort of leading Amerithe false promise of some kind of summa. What focan scholars became enthralled with the unusual lellows is my own perception of a complicated landgal construct that the European scape, which I shall sketch lightly Union embodied, and even the here in the hope of prompting otLeading American scholars US judiciary experienced some her scholars of EU Law to report sort of Europhilia. It became poson their own US experience. became enthralled with sible, then, for rookie academics the unusual legal construct to list EU law as a primary rerough the 1980s only a handsearch interest on their resumes ful of US-based international law that the European Union and actually have a seat at the tascholars had been paying close embodied, and even the ble of US legal discourse – not to a ention to the curious evolution US judiciary experienced mention, in some cases, a tenuof the EEC experiment, from a re-track faculty appointment. post-WWII international treaty some sort of Europhilia to a unique legal architecture for How did that come to be? What regional economic governance, was the recipe for such success? e brilliance of the endowed with its own law makers, judges, executield’s pioneers surely had a lot to do with it, but it ves, and of course politics. In the 1990s, however, could not, in and of itself, suﬃce. An additional feaEU law stopped being a niche interest for academic ture of that epoch was an enhanced sense of transatémigrés. It became instead a self-contained course lantic convergence – and indeed of transatlantic hefor JD candidates in top-tier law schools, enrolled in gemony. e 1990s, ushered in by the iconic fall of enough courses to receive a dedicated Westlaw casethe Berlin Wall, were the zenith of epistemic converbook just as the Treaty of Maastricht was entering ingence between Europe and the US. ird-way polito force (2). Most importantly, EU law began to tics and Washington-consensus tenets grew in disma er as a ‘ eld’ of scholarship in its own right. Arti-

1. Professor of Law and Jean Monnet Chair, Boston University School of Law. Director, Center for the Study of Europe, Boston University Pardee School of Global Studies. 2. Bermann, Goebel, Davey & Fox, Cases and Materials on European Community Law (West Group, 1993).

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cursive prominence, to the point of overshadowing the (clear!) signs of forthcoming ruptures. In the wake of 9/11, the cry ‘nous sommes toutes Américaines’ aptly captured the n-de-siècle sense of transatlantic comity. Yet again, this sort of kinship would not have been enough for EU law to conquer the legal analytics of élite American jurists. e sine qua non was, in my view, the relevance of EU law discourse to the law and politics of the Rehnquist Court. Appointed to the role of Chief Justice in 1985, William Rehnquist spearheaded what we now know as the federalist revolution, openly aimed at restoring what he (and many others) envisioned as the proper balance between States and federal government. rough the 1990s, in a sequence of high-pro le cases, the US Supreme Court construed the sphere of States’ powers in the broadest possible terms, and correspondingly narrowed the scope of federal regulatory intervention. e political controversy surrounding such cases cast doubt on the court’s allegedly strict adherence to the Constitution. It became therefore important, for scholars aligned with the Rehnquist jurisprudence, to push back against charges of ideological conservatism. It was in this climate that the story of European legal integration gained traction in US legal academia. e EU narrative spoke to the anxieties of US constitutionalists, but it did so out of context and in a style that was ideologically opaque. For those interested in rephrasing the question of federalism in neutral language, EU parallels oﬀered an extraordinary opportunity. As Ernest Young explained, ‘[c]onsidering issues of federalism in the context of Europe... helps us shed some of the historical baggage hindering present debate, and it demonstrates that any number of diﬀerent federal se lements may be workable and legitimate’. rough the 1990s, EU comparisons served the goal of depoliticising the US conversation on States’ rights, lending doctrinal fortitude to the Rehnquist Court’s agenda. As the 21st century began, the obsession of the US legal academy with the Rehnquist Court’s jurisprudence lost its urgency, overcome by other implosions in society and governance, and the post-9/11 realignments did away with the 1990s rhetoric of transatlantic convergence. All the while, the political economy of EU law had become so complex that the eld could no longer serve as a depoliticised object of US federalist inquiry. With the dawn of the new millennium, it became clear that re ections on the constitutional nature of the EU had gone as far as

EU comparisons served to depoliticise the US conversation on States' rights in the 90s

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scholars of national security law took notice (yes, in they could towards permeating core legal writing in the US as in Brexiteer milieus, the ECtHR jurispruAmerica. An illustration may be helpful here. Daniel dence is o en lumped up with EU law ma ers). But Meltzer, then part of the Harvard law faculty, took inmuch of EU law became good for a variety of comterest in the Francovich jurisprudence and wrote a parative law projects: a basket of discrete pieces, pocharacteristically sharp article on the doctrine of statentially useful for all stripes of legal research, comte liability, highlighting inverted pa erns of State acpletely severable from one another, and probably countability in the US doctrine of sovereign immumore interesting than the whole that had generated nity. In the 1990s this notable comparison might hathem. ve counted as an authoritative contribution to critical issues in US public law. In the is is, in my view, the current 2000s, however, it was both constate of EU law in US legal acadeceived and received as a selfmia. While still of great imporcontained exercise – impressive, EU law is now a contance to American political to be sure, but no longer central to scientists and historians, the American legal discourse. More glomerate of themes EU’s atypical nature and existengenerally, the tone of the discussion on European legal integrarather than a locus tial struggles are by now no more relevant in A mer ican law tion changed. e interest in EU schools than many other regiolaw did not suddenly vanish, but of interlocking nal legal constructs around the it morphed in ways that rocked analytics globe. To give just one example, the subject out of balance. In fact, it is hard to get US legal scholars what morphed was the very unexcited about the BVerfG’s Weiss derstanding of EU law, now condecision of last May, even sisting of a conglomerate of thethough that judicial saga was a vemes as opposed to a locus of inritable show stopper in EU law circles, especially giterlocking analytics. ven the wrangling over COVID -19 rescue funds. From the American side of the pond, a er the Brexit Into the 2010s, the process of fragmentation grew earthquake, the Solange saga and its current reverdeeper (3). Some legal features of the EU’s outwardberations look like tempests in a teapot. e 1990s facing policies were of the kind that US legal schonotion of EU law as a cohesive eld no longer exists. lars simply could not ignore: trade and foreign investment (in the context of the IP negotiations); Yet the bits resulting from its balkanis ation, each uninternational taxation (under the aegis of the der a different name, may still belong officially in OECD’s coordination efforts); and global antitrust mainstream American legal discourse, not just as foenforcement ( the Microso saga). New chunks of reign curiosities but as essential contributions toEU law also acquired distinct visibility in US legal wards understanding historical junctures (4) and recircles. For example, when CIA atrocities in Euroframing difficult inquiries. If the story of EU law in pean black sites were revealed in Strasbourg, US 3. Franz C. Mayer, EU law scholarship om a German perspective, in this Weekend Edition. 4. Mitchel de S.-O.-l'E. Lasser, Judicial Dis-Appointments. Judicial Appointments Reform and the Rise of European Judicial Independence (OUP, 2020).

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If the story of EU law in US legal academia is a rise-and-fall parable, then the fall brings about fracture rather than extinction

blockchains and the taxation of the digital economy, may have no ready answers for the Biden administration, but it has already formulated all the questions. Perhaps most importantly in the eld of technology, green energy demands coordinated legal architectures. ere are two Green Deals on the table, one on each side of the Atlantic, and each is being pitched by its proponents as a strategy of domestic economic recovery. e clashes, starting with subsidies and non-tariﬀ barriers, are totally predictable, and transatlantic coordination through law is essential to the success of global greening strategies.

US legal academia is a rise-and-fall parable, then it is one in which the fall brings about fracture rather than extinction. I take it as my task now to enumerate the pieces of EU law that in my view are likely to remain relevant to US legal scholarship, or to become even more important in the 2020s.

One such piece is the regulation of big tech, writ large. is is not only due to the Brussels eﬀect (5), which generates new compliance duties for US rms dealing with EU customers, but also to the European penchant for conceptualisation. American legal scholars look closely at the GDPR not just because it materially aﬀects GAFA et al., but also because it outlines an embryonic legal architecture for the data economy, cognisant both of market dynamics and of fundamental rights. America’s Fintech is likewise plagued by hair-raising ethical and distributional issues which have been more readily foregrounded in Europe than in the US. e EU’s legal debate in such elds, including the regulation of 5. Anu Bradford,

e rise of populist movements is generating, as well, a strand of EU legal scholarship that is clearly relevant to America’s own law-and-politics tangle. On this front, US-based jurists have been paying a ention. Steven Bannon’s trips to multiple European capitals, as well as his faith in a world-wide nationalist-populist revolt, have led American legal scholars to focus on the rise of the European far right. EU lawyers bring to this conversation not only their familiarity with the dark legacies of continental authoritarianism, but also their ongoing quest for legal mechanisms to rein in those Member States in which the boundaries between executive and judiciary branches are being blurred by populist leaders.

e Brussels Eﬀect: How the European Union Rules the World (OUP, 2019).

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I don’t foresee EU law regaining its former disciplinary unity in American law schools. e question is whether other paths of epistemic coherence will emerge from the fragments of this eld

Most crucial today, in my view, is the transatlantic debate about law and racism. ‘We are here because you were there’ is an anti-racist slogan that speaks volumes, in the old continent, about the need to revisit the legal dynamics of European colonialism, old and new. Reparation for exploitative practices is a legal notion in need of development. Rather than a closed chapter of European history, the implementation of beggar-thy-neighbour policies continues to occur today through EU law and EU-led actions, most notably vis-à-vis Mediterranean migration and in the context of environmentally suspect trade agreements with the Global South. European inquiries on police brutality (6) are rightly commanding a ention in the US, given the resonance of the Black Lives Ma er movement among American legal scholars. New forms of moral and material injustice (the new racial capitalism) require a more textured legal vocabulary than is to be found in European anti-discrimination law or in the conceptual frame of secularism, and American academia can lend both its own experience and a friendly ear to such endeavours. e same applies to the ongoing critique and reconstruction of the international human rights regime (7).

this eld. Here is one desirable path. European and American jurists alike will do well to engage with the analytics of distribution. omas Pike y laudably triggered a renewed conversation on the economics of capitalism, but jurists must carry the baton much further. e time is ripe for transatlantic dialogue on all the legal constructs that still enable and normalise inequality and exclusion. Just as in the US, in Europe there is a renewed focus on the fact that law – including EU law in its most technical aspects – is an engine of distribution of both power and resources. A pervasive distributive analysis of every corner of EU law is essential to tackle inequality, not only downstream through ex-post redistribution, but at its source (8). e transatlantic laboratory of distributive analysis that is currently emerging may well generate new meaningful synergies and, with time, string some EU law pieces back together.

While I expect US legal scholarship to engage signicantly with these and other discrete pieces in the forthcoming years, I don’t foresee EU law regaining its former disciplinary unity in American law schools. e question is whether other paths of epistemic coherence will emerge from the fragments of

6. Eddie Bruce-Jones, Race in the Shadow of Law. State Violence in Contemporary Europe, Routledge, 2017. 7. Gráinne de Búrca, Re aming Human Rights in a Turbulent Era (OUP, 2021). 8. Katharina Pistor, e Code of Capital: How the Law Creates Wealth and Inequality, (Princeton University Press, 2019).

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News Highlights Week 5 to 9 April 2021

New report by SRB on guidance regarding bail-in of international debt securities

Funded PhD position at Maynooth University’s Department of Law and ALL Institute

Monday 5 April

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e Single Resolution Board issued a report that sets out the aspects to be taken into account by banks as regards international bearer debt securities issued and safekept in the International Central Securities Depositories, Euroclear Bank and Clearstream Banking Luxembourg.

e Department of Law and the Assisting Living & Learning (ALL) Institute at Maynooth University (Ireland) are seeking a PhD researcher for the project: DANCING - Protecting the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity through European Union Law: Exploring New Paths.

European Court of Auditors: EU customs controls not harmonised, hampering EU nancial interests

ECtHR: Santa Claus protest on Blagoev statue in Bulgaria was covered by the freedom of expression

Monday 5 April

Tuesday 6 April

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A report has been published by the European Court of Auditors which nds that customs controls are still ‘insuﬃciently harmonised’ across Member States, and that this harms the EU’s nancial interests as it allows fraudulent importers to avoid customs duties by targeting weak points.

e European Court of Human Rights ruled in Handzhiyski v. Bulgaria that convicting the applicant for pu ing a Santa Claus hat and sack on the statue of former political leader Dimitar Blagoev in the main square of Blagoevgrad as a form of political protest was an infringement of the freedom of expression (Article 10 ECHR).

EU Firearms Directive codi ed and now published

Commission approves French State aid for recapitalisation of Air France in COVID-19 context

Tuesday 6 April

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e recast Directive (2021/555) codifying the rules on control of the acquisition and possession of weapons in the EU, as they have been amended many times, was published.

Tuesday 6 April

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e European Commission conditionally approved aid from France in the amount of 4 billion euros to Air France through its holding company (Air France-KLM) under the State aid Temporary Framework, due to major nancial losses suﬀered as a result of the COVID-19 outbreak and related travel restrictions, and so that it can be recapitalised.

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EU Regulations on Securitisation Published Tuesday 6 April

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ECB: Vacancy for temporary position of Lawyer-Linguist with Irish as main language

Oﬃcial publication was made of two Regulations adopted on 31 March 2021 in relation to securitisations: Regulation 2021/557 (general framework for securitisation) and Regulation 2021/558 (adjustments to the securitisation framework) in order to support the economic recovery in response to the COVID-19 crisis.

Wednesday 7 April

Presidents Michel and von der Leyen’s oﬃcial visit to Ankara: main takeaways

Commission publishes Guidelines on the de nition of ‘environmental damage’ under Environmental Liability Directive

Wednesday 7 April

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European Council President Charles Michel and European Commission President Ursula von der Leyen met with Turkish President Erdoğan in Ankara on 6 April in the highest level a empt there has been in the last ve years to relaunch EU-Turkey relations.

A vacancy notice for the position of Lawyer-Linguist at the European Central Bank was oﬃcially published.

Wednesday 7 April

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Oﬃcial publication was made of a Commission Notice (2021/C 118/01) with Guidelines providing a common understanding of the term ‘environmental damage’ as de ned in Article 2 of Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage.

Commission Notice concerning reimbursement of anti-dumping duties published Wednesday 7 April

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A Commission Notice (2021/C 118/06) on how to apply for a refund of anti-dumping duties under Article 11(8) of Regulation 2016/1036 was oﬃcially published.

Ombudsman nds no maladministration in Frontex’s refusal to provide documents concerning its maritime operations Wednesday 7 April

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e Eu ro p ea n O m b u d s ma n co n c l u d ed i n c a s e 233/2021/OAM that there was no maladministration commi ed by Frontex in its refusal to disclose access to documents containing tracking data regarding speci c vessels used in Frontex maritime operations, as well as detailed information on the technical equipment deployed.

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EUIPO publishes CP12 Common Com- Intra-EU travel in COVID-19 times munication on evidence in trademark through ‘Digital Green Certi cate’: appeal proceedings EU’s data protection bodies call for protective legal framework Wednesday 7 April READ MORE ON EU LAW LIVE

e European Union Intellectual Property Oﬃce published a Common Communication (CP12) with recommendations on evidence in trademark appeal proceedings, in particular with regard to the ling, structure, and presentation of evidence and the treatment of con dential information.

Wednesday 7 April

European Chief Prosecutor proposes 1 June 2021 as start date for EPPO operations

Conference on the Future of Europe to launch citizens’ platform on 19 April

Wednesday 7 April

e Executive Board of the Conference on the Future of Europe endorsed the digital multilingual platform that will allow citizens across Europe to participate and provide insight into the Conference’s topics, which is expected to be launched on 19 April.

e European Chief Prosecutor of the European Public Prosecutor’s Oﬃce sent a le er to Justice Commissioner Reynders proposing that the EPPO should start operations on 1 June 2021.

EMA nds possible link between AstraZeneca vaccine and blood clots: common approach among Member States still to be reached ursday 8 April

e European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) adopted a joint opinion on the European Commission’s proposals for a Digital Green Certi cate which would allow travel within the EU amidst COVID-19 restrictions.

ursday 8 April

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EU Health Ministers held an informal meeting to harmonise the positions of the diﬀerent Member States regarding their vaccination strategies following public announcement of the conclusions of the EMA’s P C Commi ee on the AstraZeneca COVID-19 vaccine, con rming that the vaccine may lead to unusual blood clots.

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ESRB Secretariat: Vacancy for temporary position of Lead Legal Counsel ursday 8 April

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A vacancy for the position of Lead Legal Counsel at the Secretariat of the European Systemic Risk Board (ESRB) was published.

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ECtHR: compulsory vaccination for children in the Czech Republic is in line with human rights ursday 8 April

Commission launches public consultation on revision of RDI Framework ursday 8 April

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e European Commission launched a public consultation seeking feedback by interested parties on the revision of the State aid Framework for research, development and innovation, also known as the ‘RDI Framework’.

e European Court of Human Rights ruled in Vavřička and Others v. the Czech Republic (application nos. 47621/13 and 5 others) that Czech rules imposing a general duty to vaccinate children do not breach the right to private life under Article 8 ECHR.

Commission publishes Notice on the avoidance and management of con icts of interest under the Financial Regulation

European Ombudsman advises Commission on how to improve public access to and proactive publicity of conrmatory decisions

Friday 9 April

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e European Ombudsman delivered two decisions (in cases 787/2020/DL and 763/2020/DL) concerning the Commission’s transparency policy on public access requests. e Ombudsman advised the Commission to step up its processing of future requests for access, and made a series of suggestions concerning proactive publication of con rmatory decisions in the future.

Oﬃcial publication was made of Notice (2021/C 121/01), which provides technical guidance on the avoidance and management of con icts for staﬀ and bodies involved in implementing and monitoring the EU budget under Financial Regulation 2018/1046.

Regulatory Scrutiny Board: Annual Report 2020 Friday 9 April

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e European Commission’s Regulatory Scrutiny Board published its Annual Report 2020, covering its and re ecting on current trends and practices in be er regulation policy.

h year of operation

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Insights, Analyses & Op-Eds 22 March - 9 April 2021

It’s about proportionality! Strasbourg clari es human rights standards for compulsory vaccination programmes

Is Dialogue between Courts and Quasicourts possible without formal communication channels?

by Dolores Utrilla

by Elia Cerrato García

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Op-Ed on Vavřička and Others v. the Czech Republic, a highpro le Grand Chamber ruling from the ECtHR con rming that Czech rules imposing a general duty to vaccinate children against several well-known diseases are compliant with Article 8 ECHR, exploring its context, meaning, and potential implications.

Op-Ed on A v ESMA, Decision D 2021 02, which lays open a series of thorny issues in the recent EU architecture of nancial supervision, ranging from the balance between EU and national remits of competence, to the reviewability of acts by EU agencies, and the ability of natural and legal persons to set such review in motion.

e European Court of Human Rights at a Crossroads. Some thoughts about the new mo o ‘A Court that ma ers’

‘Hidden’ vaccines in Italian plant: EU composite procedures and hidden accountability paths

by Laurence Burgorgue-Larsen

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by Sabrina Roe ger-Wirtz and Mariolina Eliantolio READ ON EU LAW LIVE

Op-Ed on the new mo o launched on 17 March 2021 by the European Court of Human Rights in order to present its new procedural strategy, and considering the new management procedure should not conceal the basic process of selecting emblematic cases, because they are the ones that ma er.

Op-Ed on export restrictions in the COVID-19 pandemic, and the perils of nding the correct accountability forum in cases of so-called composite administrative procedures, as used in the management of the pandemic with respect to export licences for medical devices.

Judicial review of the legislature’s powers, the appeal judgment in Álvarez de Bejarano

Karlsruhe, again: e interim-interim relief of the German Constitutional Court regarding Next Generation EU

by Julian Currall

by René Repasi

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Op-Ed on judicial review of EU legislation, focusing on the EU Staﬀ Regulations, cases sometimes used by the EU Courts to test possible developments in the general law, which gives them potential wider importance.

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Analysis of the German Constitutional Court’s announcement that the German Federal President is not allowed to sign the law approving the Own Resources Decision on behalf of Germany, one of many steps in the constitutional challenge of the Law approving the Decision.

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e EU Digital Green Certi cate proposed framework: how does it interact with data protection law?

Wellcome Trust Ltd Judgment: Place of supply of services and non-business activities

by Olga Gkotsopoulou and Daniela Galatova

by Darya Budova

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Op-Ed on the European Commission’s steps to establish a common digital infrastructure by the summer of 2021 to allow the authentication of Digital Green Certi cates, as a coordinated approach to ensure the right of free movement and facilitate the ght against the serious cross-border threat to health.

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Analysis of the Court of Justice’s ruling Wellcome Trust Ltd (C- 459/19), which deals with the rules for determining the place of supply of services for VAT purposes, in relation to classi cation as a taxable person.

Between se lement and infringement: the Court of Justice rules on ‘hybrid procedure’ in Pometon case by Alexander Svetlicinii

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Analysis of the Court of Justice’s ruling in Pometon v Commission, the rst to consider the presumption of innocence principle in the context of the ‘hybrid procedure’, and which a empts to balance the rights of defence and the eﬀectiveness of the se lement procedure.

Library - Book Review

By Laura Wissink

Jonathan Herbst and Simon Lovegrove (Eds)

Brexit and Financial Regulation Review of a book that was published a year ago, ‘at a time when much was still uncertain about the terms of Brexit’, but which nds it to remain relevant and useful in navigating the reader ‘through Brexit developments’ with ‘comprehensive and practical guidance through Brexit’s legal playing eld’.

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Nº53 · APRIL, 10 2021

weekend

edition stay alert keep smart

Library - Book Review

By Christophe Carugati

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Maria Wasastjerna

Competition, Data and Privacy in the Digital Economy: Towards a Privacy Dimension in Competition Policy? Review of a book that is a ‘timely legal analysis on how to update competition rules to’ the digital economy, exploring ‘the intersection between competition law and data protection law in Europe and the United States’.

Library - Book Review

By Giulia Lasagni

Stefano Montaldo, Francesco Costamagna, Alberto Miglio (Eds)

EU Law Enforcement.

e Evolution of Sanctioning Powers

Review of a book that ‘touches upon one of the most crucial themes characterising the development of our European societies into a more-federal like legal system’, providing ‘a synthetic and accurate analysis of several critical sectors of EU law’ and also preparing ‘the ground for future studies to assess future evolutionary paths of EU sanctioning powers.’

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