Redefining the outer boundaries of EU Law: the Zambrano, McCarthy and Dereci trilogy

In its three recent rulings in the cases of Zambrano, McCarthy, and Dereci, the Court appears to have been determined to redefine the external boundaries of EU law, in cases involving the family reunification rights of Union citizens.These three judgments can be read as an indication that for Article 20 TFEU to apply, there is no longer a requirement of a cross-border element on the facts of the case, and that it is sufficient if the contested national measure has the effect of ‘depriving citizens of the Union of the genuine enjoyment of the substance’ of their rights (the ‘Zambrano principle’).The cases can, at the same time, also be read as a confirmation that the free movement provisions do – still – require a cross-border element and, in particular, the exercise of inter-State movement, in order to apply. Though the result in these cases has not been entirely unexpected, especially in the aftermath of the Rottmann ruling, it is rather problematic in that, although it is obvious that the Court wishes to redraw the line dividing the national and EU spheres of competence, it does not make it entirely clear where this line now lies and leaves many essential questions unanswered, which will obviously require some time to be resolved. EU lawyers are consequently, once more, left with having to decipher as best as they can the real intentions of the Court in this new line of case-law, which has been further complicated by the fact that what the Court seems to have given with one hand in Zambrano (and before that in Rottmann), has taken it back to a large extent through its rulings in McCarthy and Dereci, which appear to confine the former two cases to their own exceptional facts.6 Moreover, the ‘reverse discrimination Pandora’s box’, the opening of which appears to have been the real target of these references, remains untouched: instead of providing a direct solution to this problem, the Court has chosen to – once again – broaden the scope of the Treaty provisions in order to include within it as many situations as possible and, thus, prevent the emergence of this type of differential treatment on a case-by-case basis.As will be explained, nonetheless, this is by no means an appropriate solution to the reverse discrimination conundrum.

Cheap dates and the delusion of gratification: are votes sold or traded in the EU Council of Ministers?

Each year, small Member States receive a disproportionate share of the European Union's (EU's) budget. A prominent explanation for this is that Council decision-making involves a healthy dose of vote selling, whereby large Member States offer small states generous fiscal transfers in exchange for influence over policy. But nobody has investigated whether net budget contributors actually get anything for their money. In this paper I identify the vote selling model's observable implications and find virtually no evidence consistent with Council cash-for-votes exchanges. I also show that a compromise model – the leading model of EU decision-making to date – modified to incorporate vote selling does not outperform a standard one that assumes votes are traded rather than sold. Taken together, the results suggest that Council decision-making operates with little or no vote selling, and that regardless of whatever they think they might be buying, net budget contributors get little or nothing in return for their money. These findings call for further investigation into how Member States approach the issue of fiscal transfers, and into the factors other than formal voting weight that affect the power of actors engaged in EU decision-making.

Use of high-resolution NWP rainfall and river flow forecasts for advance warning of the Carlisle flood, north-west England

On the 8 January 2005 the city of Carlisle in north-west England was severely flooded following 2 days of almost continuous rain over the nearby hills. Orographic enhancement of the rain through the seeder–feeder mechanism led to the very high rainfall totals. This paper shows the impact of running the Met Office Unified Model (UM) with a grid spacing of 4 and 1 km compared to the 12 km available at the time of the event. These forecasts, and forecasts from the Nimrod nowcasting system, were fed into the Probability Distributed Model (PDM) to predict river flow at the outlets of two catchments important for flood warning. The results show the benefit of increased resolution in the UM, the benefit of coupling the high-resolution rainfall forecasts to the PDM and the improvement in timeliness of flood warning that might have been possible. Copyright © 2008 Royal Meteorological Society

The role of necessity in international humanitarian and human rights law

The nature of armed conflict has changed dramatically in recent decades. In particular, it is increasingly the case that hostilities now occur alongside ‘everyday’ situations. This has led to a pressing need to determine when a ‘conduct of hostilities’ model (governed by international humanitarian law—IHL) applies and when a ‘law enforcement’ model (governed by international human rights law—IHRL) applies. This in turn raises the question of whether these two legal regimes are incompatible or whether they might be applied in parallel. It is on this question that the current paper focuses, examining it at the level of principle. Whilst most accounts of the principles underlying these two areas of law focus on humanitarian considerations, few have compared the role played by necessity in each. This paper seeks to address this omission. It demonstrates that considerations of necessity play a prominent role in both IHL and IHRL, albeit with differing consequences. It then applies this necessity-based analysis to suggest a principled basis for rationalising the relationship between IHL and IHRL, demonstrating how this approach would operate in practice. It is shown that, by emphasising the role of necessity in IHL and IHRL, an approach can be adopted that reconciles the two in a manner that is sympathetic to their object and purpose.