European Law Review ISSN: February EL Rev

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1 European Law Review ISSN: EL Rev Editorial The 40th Anniversary of European Law Review Classics of the First 40 Years Some Legal Aspects of Fundamental Renegotiations Dominik Lasok Articles What is a Leading Case in EU Law? An Empirical Analysis Urska Sadl and Yannis Panagis The New EU Tobacco Products Directive and European Fundamental Rights Dirk Uwer and Moritz Rademacher Surrogacy, Pregnancy and Maternity Rights: A Missed Opportunity for a More Coherent Regime of Parental Rights in the EU Eugenia Caracciolo di Torella and Petra Foubert Legal Interpretation of EU Framework Directives: A Soft Law Approach Emilia Korkea-aho Analysis and Reflections Comment on Érsekcsanádi Mezőgazdasági Richard Lang Unfinished Business: Rome II in Practice and the Need for a Hague Convention on Non-Contractual Obligations Emmanuel Guinchard Review Article Making Sense of Constitutional Pluralism: A Review of Klemen Jaklic s Constitutional Pluralism in the EU Daniel Sarmiento Book Reviews EL Rev Page 1 of 8

2 Editorial The 40th Anniversary of European Law Review EU law; Law journals; Legal history The European Law Review is now middle aged. It has been forty years since it first appeared. The first editorial in November 1975 defined the purview of the Review in broad terms (it includes within its scope all legal aspects of the process of European integration ) and expressed its commitment to the highest academic standards whilst catering for the needs of those involved in the practice and administration of Community law. 1 These aims have become a constant theme of our first forty years 2 and have been pursued by all its editors over the years (along with the current editorial team, these have included Alan Dashwood, Robin White, Anthony Arnull, and Damian Chalmers). In addition to covering all aspects of European law widely understood, including developments in the Council of Europe, particularly concerning the European Convention on Human Rights, the Review is committed to publishing scholarship of the highest quality, irrespective of the form of the piece submitted. It also addresses a wide audience (academics, postgraduate and undergraduate students, members of the judiciary, practitioners, officials and policy-makers) and invites submissions from anywhere in the world irrespective of the status or background of the author. As for our approach to scholarship, we do not give a particular emphasis on any type of scholarship we are committed to publishing doctrinal, theoretical, contextual and interdisciplinary analysis, as long as it is of the highest quality and its subject-matter falls within the scope of the Review. In addition to the celebratory cover, we are marking our anniversary in various ways. First, a consolidated index of the Review's content will be published later this year. Aiming to complement the index that appeared in 2002, this will provide both a snapshot of and a reference guide for the rich and diverse scholarship which has appeared in ELRev over the years. Secondly, we shall publish in our last issue of the year a reflective essay by the founding Editor, Alan Dashwood, on the evolution of EU law and the evolution of the Review over its history. Thirdly, we have chosen some Classics of the First 40 Years six articles which have stood the test of time and which deserve to be read again, now that the legal and political landscape of European integration is drastically different. These will be published over the next six issues. Finally, this Editorial, along with the reflective essay by Alan Dashwood, and the six Classics of the First 40 Years, will become available in a special free online issue in December The first in the Classics series is an article by Dominic Lasok which appeared in the very first year of the publication of the Review. Lasok took an early academic interest in the law of the European Economic Community, even before the accession of the United Kingdom, and he also introduced it in the curriculum at the University of Exeter at a time when the law of European integration was in its infancy. Entitled Some Legal Aspects of Fundamental Renegotiations and published in 1976, 3 his article dealt with the decision of the British Government of the day to renegotiate the terms of British membership of the Community and the ensuing referendum which took place in The question put ( Do you think that the United Kingdom should stay in the European Community (the Common Market)? ) was answered in the affirmative. In his article, Lasok examines the legal and policy issues of the renegotiations which preceded the referendum. Whilst almost everything about European integration has changed since its publication, Lasok s article is oddly relevant. The British Prime Minister, David Cameron, has made a pledge to renegotiate the terms of Britain s membership of the EU and then hold an in-out 1 (1976) 1 E.L. Rev See also The Future of European Law Review (2003) 28 E.L. Rev. 1 2, The Leopard? (2007) 32 E.L. Rev , and Farewells, beginnings and New Year s resolutions (2009) 34 E.L. Rev (1976) 1 E.L. Rev EL Rev Page 2 of 8

3 referendum by the end of The fundamental questions about membership remain deeply contested and their implications are far more significant in a large and heterogeneous Union that is going through an economic and political crisis of an almost existential nature. Our anniversary coincides with some changes in the Editorial team of the Review. Niamh Nic Shuibhne has stepped down as the joint Editor. During the last 6 years, she has done a stellar job with the Analysis and Reflections section. We shall miss her enthusiasm, dedication, wise advice, eye for detail, and good humour. We are happy that she has agreed to join our Editorial Board. Professor Jukka Snell has joined me as joint Editor. He is familiar to the readers of the Review as he has been our Book Reviews Editor since He is Professor of European Law at University of Turku and has established himself as one of the most incisive scholars in, amongst others, the law of the internal market. He will be responsible for the Analysis and Reflections section of the Review. Our new Book Reviews Editor is Dr Alicia Hinarejos. A lecturer at the University of Cambridge, she is the author of Judicial Control in the European Union Reforming Jurisdiction in the Intergovernmental Pillars (Oxford University Press, 2009). She has written widely in EU law and, more recently on the euro crisis (including the forthcoming The Euro Area Crisis in Constitutional Perspective (Oxford: Oxford University Press, 2015). We are delighted to welcome her to the Review. [PK] EL Rev Page 3 of 8

4 Classics of the First 40 Years Some Legal Aspects of Fundamental Renegotiations Dominik Lasok Of all the Member States of the European Communities, the United Kingdom has the unique but dubious distinction of having experienced renegotiations and a referendum subsequent to having bound herself internationally and according to her own constitution. The renegotiations and the referendum, being in the nature of legal processes, raised issues of domestic, Community and international import. Articles What is a Leading Case in EU Law? An Empirical Analysis Urska Sadl and Yannis Panagis Lawyers generally explain legal development by looking at explicit amendments to statutory law and modifications in judicial practice. As far as the latter are concerned, leading cases occupy a special place. This article empirically studies the process in which certain cases become leading cases. Our analysis focuses on Les Verts, a case of considerable fame in EU law, closely scrutinising whether it contains inherent leading case material. We show how the legal relevance of a case can become embedded in a long process of reinterpretation by legal actors, and we demonstrate that the actual legal impact of Les Verts on the acquis is most visible in the area that was sidelined in the academic commentary. This implies that a leading case is a symbolic category, which might not always correspond to the actual role that the case plays in the Court s jurisprudence. The New EU Tobacco Products Directive and European Fundamental Rights Dirk Uwer and Moritz Rademacher The EU has been regulating tobacco packaging, ingredients and advertising for more than two decades. Health awareness of consumers has been at the heart of these provisions. Credit must, not least, be given to the EU for having made the health risks of smoking unmistakably clear to the general public. The new Tobacco Products Directive is going to apply even stricter rules, especially regarding health warnings and ingredients of tobacco products. All the while the level of public education and awareness has been rising, raising the question: does an even stricter tobacco regulation not require a stronger justification in the light of the evolving European fundamental rights? The article assesses whether key provisions of the new Tobacco Products Directive are compatible with the guarantees under the Charter of Fundamental Rights of the European Union. Surrogacy, Pregnancy and Maternity Rights: A Missed Opportunity for a More Coherent Regime of Parental Rights in the EU Eugenia Caracciolo di Torella and Petra Foubert Over the years, the EU has been successful in creating a framework where pregnancy and maternity in the workplace are acknowledged and protected. Such a framework, however, fails to regulate situations such as surrogacy. The latter raises complex ethical and legal issues that have been addressed in very different ways at national level. Lack of a common position has meant that the rights that women have in to relation to surrogacy in the workplace have been ignored at EU level. This article maintains that one of the main difficulties in addressing it is the traditional understanding of who is perceived to be a mother. Women are de facto afforded rights because they are biological mothers, and this excludes surrogacy. The debate has recently been highlighted by the decisions of the Court of Justice of the European Union (CJEU) in the cases of CD v ST and Z v Government Department and the Board of Management of a Community School. Interestingly, the two Advocates General reached different conclusions, one emphasising health and safety and the other the equality aspect of the debate: neither of these Opinions offered a clear solution, yet both indicate possible ways forward. The Court ignored these suggestions and reached disappointing, albeit technically flawless and entirely predictable, decisions. Against this background, this article argues that the time is now ripe for a more coherent regime of parental rights in the EU where the focus should shift from the mere biological/gestational connotation of motherhood to emphasising the different sides of being a mother, and more generally being a parent, including a caring relationship between the parent(s) and the child. Accordingly, it concludes EL Rev Page 4 of 8

5 that the EU is in urgent need of a complete set of legal rules that looks beyond how families are constructed and values and promotes the role of care and, ultimately, the best interests of the child. Legal Interpretation of EU Framework Directives: A Soft Law Approach Emilia Korkea-aho One of the essential characteristics of framework directives, a growing phenomenon in the EU, is that what the law actually says can only be known after it has been fleshed out in implementation. Little attention has been paid to the consequences that this entails for the courts and legal theories of interpretation. Focusing on the EU Water Framework Directive and early rulings, this article first argues that adjudicating on framework directives is complicated and attempts by the European Court of Justice to apply the Inter-Environnement Wallonie doctrine to framework directives fail. The article then proceeds to suggest a new approach to legal interpretation: when adjudicating on framework legislation, the courts should acknowledge administrative reasoning. This is a form of reasoning that embodies the development of framework directives by multiple actors in the form of soft law guidance. Its use by the courts requires clarification of the unclear legal authority of guidance, and the article concludes by discussing early judicial steps in this direction. Analysis and Reflections Comment on Érsekcsanádi Mezőgazdasági Richard Lang In May 2014, the Court of Justice delivered a judgment in which a Hungarian concern unsuccessfully sought damages from the Hungarian authorities for economic loss caused to it by an EU ban, prompted by an outbreak of avian flu. In this case comment, it is submitted that the decision (Érsekcsanádi Mezőgazdasági) is important for two reasons. First, it is important in the way that it sheds light on the interpretation to be given to art.51(1) of the Charter of Fundamental Rights and reveals more of the Court s jurisdictional teething problems where the Charter is concerned. However, secondly, it is important in its problematic reading, or possible misreading, of art.17 of the Charter on the right to property, and particularly the issue of fair compensation, guaranteed by that provision. It is argued here that there is a right to compensation, at EU level, where property is controlled by a Member State in implementation of EU law. Unfinished Business: Rome II in Practice and the Need for a Hague Convention on Non-Contractual Obligations Emmanuel Guinchard The French Cour de cassation recently delivered its first judgment on the Rome II Regulation on the law applicable to non-contractual obligations. It held that Rome II could not override the Hague Convention on traffic accidents. Therefore, in France, the Hague Convention applies instead of Rome II. The decision is legally sound but has the unwelcome effect of encouraging forum shopping. Several suggestions have been put forward to address this issue, which is common to numerous EU Member States and also affects the relationship between Rome II and another Hague Convention. A solution would be to draft a Hague Convention on non-contractual obligations along the lines of Rome II, given the fact that few provisions of Rome II are EU-specific. This would reconcile the need for uniformity within the EU and the EU s efforts to engage with the outside world through the Hague Conference on Private International Law. Review Article Making Sense of Constitutional Pluralism: A Review of Klemen Jaklic s Constitutional Pluralism in the EU Daniel Sarmiento Klemen Jaklic s book on constitutional pluralism is a comprehensive inquiry into an intellectual movement whose supporters have much less in common than could be expected. In his book, Jaklic makes an effort to systematise the movement and provide a normative dimension to it, something that leads him to defend a utopian model of democracy for the EU. I will argue that this book, with all its virtues, shows also all of the weaknesses of constitutional pluralism: its EL Rev Page 5 of 8

6 lack of common premises, an absence of common purpose and a tendency to mix descriptive with normative analyses. The review will thus propose an alternative to the one proposed by the author, but under the assumption that the promise of constitutional pluralism is yet to be achieved, if it ever will be. Book Reviews Tables Index EL Rev Page 6 of 8

7 Classics of the First 40 Years Forthcoming in European Law Review The Doctrine of Direct Effect : An Infant Disease of Community Law Pierre Pescatore Articles European Banking Union A Legal and Institutional Analysis of the Single Supervisory Mechanism and the Single Resolution Mechanism Kern Alexande This article analyses the EU legal and institutional structure of the Single Supervisory Mechanism and the Single Resolution Mechanism of the European Banking Union. The Banking Union represents an unprecedented transfer of sovereignty from participating Member States to a European Union institution for conducting banking supervision and for delegating authority to an EU agency to have responsibility for the preparation, implementation and funding of a European bank resolution regime. The article examines the legal basis of the SSM in the Lisbon Treaty and considers whether the ECB s strong form of independence is appropriate for its role as a bank supervisor, and whether its limited powers to take macro-prudential regulatory and supervisory measures are adequate to ensure banking sector stability. The article further argues that the SRM provides an important institutional step to build a more effective European bank resolution framework, but it suffers from institutional weaknesses and legal uncertainty regarding the use of resolution tools that undermine its ability to manage a bank resolution. The article concludes that a more effective banking regulation and resolution regime in the Banking Union requires a sounder legal basis in the EU Treaty that would empower the ECB to have full powers to conduct macroprudential supervision and to coordinate more with the SRB in the use of resolution powers, but subject to strict criteria established in law. Solving the European Union s General Court David Hadroušek and Martin Smolek The European Union s judiciary is under pressure: the General Court is facing a growing tide of new cases every year, the backlog keeps swelling. In 2011, the Court of Justice proposed to deal with the situation by increasing the number of judges by twelve. However, three years of negations have led nowhere. In October 2014, the Court of Justice reacted by proposing to double the number of judges of the General Court instead and, at the same time, abolish the Civil Service Tribunal. Will the Member States and the European Parliament go for this, at first sight, radical solution? If not, will there be any viable alternative? This article suggests that a new specialised court, if properly framed, could do the trick. The Choice of Wording must be regarded as Deliberate : Same-sex Marriage and Article 12 of the European Convention on Human Rights Professor Paul Johnson This article provides a critical analysis of the textual interpretation of Article 12 of the European Convention on Human Rights (ECHR) promulgated by the European Court of Human Rights (ECtHR) in respect of same-sex marriage. I argue that the ECtHR s interpretation of art.12 is based on problematic historical claims about the textual construction of the right to marry which, when subject to scrutiny in light of available evidence relating to the drafting process of the ECHR, undermine its conclusion that art.12 extends only to opposite-sex couples. I challenge the ECtHR s interpretation of art.12 by arguing that its understanding of the wording of the right to marry suffers from historical presentism. I conclude by suggesting that a textual interpretation of art.12 need not lead to the conclusion that same-sex couples are excluded from the right to marry. In Memoriam Keck: The Reformation of the EU Law on the Free Movement of Goods Ioannis Lianos The Keck jurisprudence of the CJEU constituted an important milestone in the effort to develop workable principles for the interpretation of art.34 TFEU in a way that would not jeopardize the ability of Member States to regulate their economy and pursue other public EL Rev Page 7 of 8

8 policy objectives than promoting trade. Yet it seems that the Keck era has come to an end. In its most recent case law on the free movement of goods the Court returned to an overbroad definition of MEQR and restricted the legal categorization approach previously employed in favour of one relying on the balancing of conflicting interests and values. The study explores the rise and progressive demise of the legal categorization approach before focusing on the return to a broad definition of MEQR with a re-interpretation of the market access rule. The broader implications of this approach are then examined, in particular the reformation of the free movement of goods EU law in the era of the EU/Canada Comprehensive Trade and Economic Agreement (CETA) and the ongoing negotiations on the Transatlantic Trade and Investment Partnership (TTIP). For further information on our products and services, please visit EL Rev Page 8 of 8