The decentralized enforcement of European Union competition law is reliant on the obligation imposed uponnational competition authorities and courts to apply Articles 101 and 102 TFEU when there is an ‘effect on trade’ between Member States. Despite its foundational importance in promoting an effective, uniform, and consistent application of EU law, this criterion remains under-defined at the EU level and is to a great extent operationalized through national-level discretion in its application. Previous studies and the Commission’s 2024 evaluation of decentralization cautioned that this flexibility may be strategically exploited; yet, no study has systematically examined the application of the test by national courts and their oversight function. Drawing on comprehensive empirical databases, this article suggests that the EU safeguards for ensuring a correct and uniform application of the ‘effect on trade’ test – judicial review by national courts, preliminary references, and Article 258 TFEU infringement proceedings – have failed, and calls for greater compliance by refocusing the available EU law tools.
Despite the growing importance of services, the continued involvement of EU Member States within EU trade policymaking for services remains insufficiently examined. The Commission v Hungary (Higher Education) case illustrated how Member States retain a decisive role in determining and implementing commitments for international trade in services, even within the Union’s exclusive competence for the Common Commercial Policy. This article examines how EU law structures this continued involvement in relation to the Union’s exclusive competence and how it shapes the operation of EU trade policymaking in services. It shows that the persistence of regulatory flexibilities and the lack of harmonization continue to sustain Member State involvement. While the duty of cooperation enables the Union to act externally in areas where implementation remains nationally embedded, it cannot overcome the underlying structural constraints of trade regulation in services. EU trade policy in services thus operates under something that may be described as a ‘rule of domestic law’: a framework in which the parameters of external liberalization are defined by the contours of Member State regulation.
Reaching the European Union’s environmental objectives necessitates significant investments. EU funding is increasingly recognized as a critical tool for driving this transition, yet the legal framework governing such spending remains underexplored. This paper maps the environmental legal entry-points in EU funding law, analysing how public finance mechanisms are being increasingly leveraged to mainstream environmental concerns. It identifies three core instruments – dedicated funds, spending targets, and environmental conditionalities – through which EU funding law advances environmental goals. While these developments mark a notable shift, they raise three transversal risks regarding their effectiveness, namely the definition of ‘green’ spending, adherence to the polluter pays principle, and the environmental implications of growth-centric funding logic. The paper highlights the evolution of EU public finance law and calls for closer scrutiny of its effectiveness and environmental integrity.
In Opinion 2/13, the Court of Justice rejected the EU’s accession to the ECHR, in large part for reasons related to the autonomy of the EU legal order. In doing so, the Court focused on the Draft Accession Agreement and draft explanatory report. However, the draft accession package consists of five accession instruments, all of which are considered equally necessary by the negotiators, including a draft Memorandum of Understanding with respect to applications before the ECtHR against non-EU Member States that are associated with parts of the EU legal order. Although the Court of Justice did not address the Memorandum of Understanding in Opinion 2/13, this contribution argues that it poses similar risks for the autonomy of the EU legal order, making it all the more remarkable that this part of the accession instruments has not been renegotiated post-Opinion 2/13, thereby constituting an overlooked potential stumbling block for the EU’s future accession to the ECHR.
In recent years, the European Union has increasingly leveraged its growing spending power to broaden the scope and intensity of its actions, leaving virtually no policy field untouched by the reach of EUfunding. This evolution raises critical constitutional questions, particularly in light of the principles governing the system of competences. The Union’s exercise of spending powers, notably through the use of conditionality mechanisms, has indeed rapidly emerged as an attractive alternative to the standard procedures for enacting and enforcing rules in the EUlegal order, often without any genuine reflection on the limits posed by the principle of conferral. This article focuses on the competence issues deriving from the rise of governance through funding, identifying a set of constitutional constraints to the use of spending powers as an alternative regulatory or enforcement technique in EU internal affairs. Importantly, it goes beyond discussing, retrospectively, the legality of specific funding instruments adopted in recent years, but rather aims at providing a framework to examine, prospectively, whether and to what extent the use of spending powers remains within the realm of EU competences. The issue of ‘competence creep’ through funding is ever more salient nowadays, as the EU institutions enter tense negotiations on the future of EU funding under the next Multiannual Financial Framework.
In the name of the rule of law, the EU emerged as a powerful standard setter for the organization of national judiciaries. Whilst such efforts firstly targeted accession countries, they now also internally affect Member States. Based on a comparison of the scope, substance, enforcement method and nature of such EU standards in the accession versus intra-EU dimension, this article investigates whether a coherent overarching normative framework can be identified. On the one hand, it is argued that the substance of such standards in both dimensions must align. On the other hand, different enforcement methods adapted to the two contexts seem to be justified. Acknowledging the Member States’ and candidate States’ fundamentally different legal statuses, considering the distinct nature of the standards as well as the differing roles of the EU institutions involved in the accession versus the intra-EU context, this article calls for a context-sensitive EU approach in promoting the rule of law.
Joined Cases C-29 & C-44/22 P, KS and KD v Council of the European Union and Others, Judgment of the Court of Justice (Grand Chamber) of 10 September 2024, EU:C:2024:725; Case C-351/22, Neves 77 Solutions v Agen & tcedil;ia Na & tcedil;ional & abreve; de Administrare Fiscal & abreve; - Direc & tcedil;ia General & abreve; Antifraud & abreve; Fiscal & abreve;, Judgment of the Court of Justice (Grand Chamber) of 10 September 2024, EU:C:2024:723
Charging different prices to different consumers for the same credit product based on their personal data for reasons unrelated to counterparty credit risk (personalized credit pricing), is a pricing practice that has caused significant controversy among regulators and scholars. While the prevalence of this practice is unclear, opponents point to the potential harmful effects for financially vulnerable consumer groups who would be offered higher prices, exacerbating economic inequality. One of the regulatory approaches used to address these risks is the ‘product governance approach’ (PGA). This article analyses the costs and benefits of using PGA to regulate the practice. Drawing from regulatory theory, it explores the foundation and core dimensions of the approach (substantive, procedural and conduit standards) and its bases in the Consumer Credit Directive. Subsequently, based on economic theory and examples from implementations by supervisory authorities, it concludes that PGA is poorly suited to impose substantive standards on the practice and may have significant adverse consequences. The analysis concludes with general recommendations for regulators considering PGA, and specific considerations for the interpretation of the Consumer Credit Directive.
This article examines the evasion of EU law through summary returns at internal EU borders. It provides a mapping of Member States’ practices and assesses their legality under the current and reformed EU asylum, border, and return laws. It shows how Member States increasingly rely on unilateral and bilateral mechanisms, including refusals of entry and readmission agreements, to circumvent common procedures. Drawing on a comprehensive review of case law, the article offers a comparative analysis of the response of domestic courts, concluding that judicial oversight has been vital but insufficient. The article proposes, inter alia, targeted legislative amendments to prevent the normalization of removal practices that undermine the effet utile of EU law, legal coherence, and fundamental rights accountability.
Russias' all-out war against Ukraine, followed by Trumps' reelection as US President, force Europe to take greater responsibility for its own defence, not in the least by increasing defence expenditure. The article argues that this requires the European Union and the Member States not only to devote more budgetary resources to defence, but also to use their budgetary powers with greater flexibility. It shows they have started to act on this requirement in three ways: (1) devoting a greater part of the EU budget to defence; (2) engaging in collective debt financing; and (3) activating the national escape clause in the Stability and Growth Pact. Taken together, these measures illustrate how, under the pressure of events, the EU and the Member States learn to put their budgetary powers at the service of European defence.
