Summer 2015 – Volume 8 – Issue 1

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Catalogue no.: QM-AZ-19-016-EN-N

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Inside the Research Factory

By: Jan Zglinski

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New Voices

Challenging the Subnational Dimension of Subsidiarity in EU Law

By: Michèle Finck

This article, which forms part of the ‘New Voices’ series and is hence drafted as an essay rather than a proper academic article, examines the principle of subsidiarity in its application to local and regional authorities as they exist within the various Member States. While subnational authorities (‘SNAs’) have been studied extensively within the respective domestic contexts, their relation with other levels of public authority, such as the European Union, is less well-defined. Subsidiarity is often cast as the principle capable of recognising the existence of subnational autonomies by the EU, and guiding their interaction with the latter. This is so in particular after Article 5(3) TEU has been amended on the occasion of the Lisbon Treaty revision to include an express reference to local and regional authorities. This short essay challenges this perception of subsidiarity, putting forward that the core legal provisions that deal with subsidiarity in EU law do not allocate any meaningful role for SNAs. This is so, it is argued, because subsidiarity remains anchored in an understanding of the European Union and its legal order as composed of and shaped by the EU and the Member States to the exclusion of any other actor.

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General Articles

The Role of Effet Utile in Preserving the Continuity and Authority of European Union Law: Evidence from the Citation Web of the Pre-accession Case Law of the Court of Justice of the EU

By: Urška Šadl

Effet utile is one of the most contested terms in European case law. The present article empirically analyses its occurrences in the case law across time, legal fields and argumentative contexts. It thereby demonstrates that the main function of effet utile is to mitigate the entrenchment and extension of fundamental doctrines: primacy, direct effect and human rights. On this basis, the article argues that effet utile is primarily a rhetorical instrument used by the Court of Justice of the European Union to decouple legal principles from the practical effects of its decisions with the objective of persuading Member States to accept the authority of European law without compromising its normative coherence and continuity. The analysis is an important contribution to a comprehensive understanding of effet utile and offers a deeper insight into the long-term maintenance of supranational judicial authority.

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Private Power and International Law: The International Swaps and Derivatives Association

By: Maciej Borowicz

International lawyers have traditionally been interested in public power, i.e. ability to influence substantive outcomes across national borders through state coercion or threat thereof. They have been (and continue to be) engaged in debates about ways in which that type of power can be limited or, at the very least, made accountable. More recently international lawyers have also developed an interest in private power, i.e. ability to influence substantive outcomes across national borders without the use of state coercion or threat thereof. This paper explains how accountability for exercise of private power is achieved using the International Swaps and Derivatives Association (ISDA) as an example. ISDA’s accountability consists of a combination of procedural Global Administrative Law-like standards applicable to ISDA itself as well as legislative, regulatory and judicial recognition of the market conventions developed by ISDA. This model of accountability makes ISDA responsive to both cosmopolitan and national constituencies.

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Power and Accountability in the EU Financial Regulatory Architecture: Examining Inter-agency Relations, Agency Independence and Accountability

By: Iris H-Y Chiu

Institutional reforms carried out at the EU level in the aftermath of the global financial crisis were purposed towards preserving the stability and well-functioning of financial markets in the EU. The European System of Financial Supervision was first created, followed by the Single Supervisory Mechanism supported by the Single Resolution Mechanism. The proliferation of European level regulatory and supervisory authorities has recalibrated the exercise of public authority over financial markets, and significant power has shifted from national to European level agencies. The creation of EU level agencies is supported by avenues of formal accountability in political, stakeholder and judicial accountability, resulting in some complex designs in power structures. The article argues that such complex designs may affect the autonomy and technocratic efficacy of institutions. However, there is potential in leveraging upon one aspect the complexity offers- inter-agency coordination, in order to promote learning for technocratic effectiveness as well as to cultivate a form of accountability that ameliorates the perception of excessive power. The paper will focus on the inter-relationships between the three European sectoral agencies, especially in the Joint Committee and Board of Appeal to illustrate the achievements of inter-agency coordination and accountability. The paper will go on to explore new challenges that arise with the introduction of the SSM and SRM into the EU financial regulatory architecture. The paper will argue that promoting inter-agency coordination in specific areas may have the potential to address some of these challenges. The broader notion of inter-agency accountability can also spawn future lines of discourse and research into improving the credibility and legitimacy of the exercise of power by EU level agencies.

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Concept of a Court or Tribunal under the Reference for a Preliminary Ruling: Who can Refer Questions to the Court of Justice of the EU?

By: Jaime Rodriguez Medal

Who can refer a question on the interpretation and validity of EU law to the Court of Justice of the EU (CJEU)? The most evident answer is a court or tribunal from a Member State, as it is established in the EU Treaties. The CJEU has developed a European concept of a court or tribunal through case law, but the EU Member States have diverse legal systems and there is no uniformity on the consideration of some bodies as a court or tribunal. Furthermore, the CJEU has had some problems with the interpretation of what a court or tribunal is, has added new criteria and has departed from some positions. On top of that, the EU has been growing and each enlargement has brought and will bring countries with more diverse legal systems. Because of that, the case law of the CJEU should be firm in order to avoid legal uncertainty aboutwho is truly empowered to use the procedure. The aim of this study is to analyse the concept of a court or tribunal through the relevant case law where the criteria have been set and where certain particular bodies which do not exercise a pure judicial function have been considered competent to raise questions.

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How Can Obesity Fit within the Legal Concept of ‘Disability’? A Comparative Analysis of Judicial Interpretations under EU and US Non-discrimination Law after Kaltoft

By: Joseph Damamme

The recent change of the concept of ‘disability’ by the Court of Justice of the European Union (CJEU) in HK Danmark (Ring and Skouboe Werge) represents a valuable progress in the pursuit of consistency between the social model of disability and the corresponding concept of disability under non-discrimination law. However, even under the new concept, there may be disagreement to qualify certain conditions as a ‘disability’. Recent CJEU’s case of Kaltoft dealing with obesity reflects this difficulty. The purpose of this paper is to assess the relevance and the impact of including obesity in the scope of ‘disability’ as a discrimination ground. To that end, a comparative approach will be followed by confronting the Kaltoft ruling with judicial interpretations under the law of the United States of America. It will also be combined with an integrated approach considering the multi-layered nature of disability discrimination law from a European standpoint.

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Book Reviews

Book Review: Marek Zirk-Sadowski, Bartosz Wojciechowski, and Karolina M Cern (eds), Towards Recognition of Minority Groups: Legal and Communication Strategies (Ashgate, 2014)

By: Emma Nyhan

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