Liberalising trade in services: creating new migration opportunities? Research Paper in Law, 1/2010

Introduction. It is quite uncommon to associate migration with the rules on services trade. Indeed, all economic definitions of services insist on their immaterial nature and on the increased possibility of trading them ‘virtually’ over networks or else, without any physical movement of the parties involved. Somehow this ‘immaterial’ nature of services reflects on their providers/recipients which seem to be ‘invisible’. Even though most services still require the physical contact of the provider with the recipient1 and, when provided over national borders, do entail migration, service providers and/or recipients are rarely thought of as ‘immigrants’. This may be due to the fact that they enter the foreign territory with a specific aim and, once this aim accomplished, move back to their state of origin; technically they only qualify as short term non-cyclical migrants and are of little interest to policy-makers. A second reason may be that both service providers and recipients are economically desirable: the former are typically highly skilled and trained professionals and the latter are well-off ‘visitors’, increasing consumption in the host state. The legal definition of services in Article 57 TFEU (ex Art. 50 EC) further nourishes this idea about service providers/recipients not being migrants: the relevant Treaty rules only apply when the provisions on free movement of workers and freedom of establishment – themselves clearly linked to migration – do not apply. This distinction has been fleshed up by the ECJ which has consistently held that the distinction between the rules on establishment, on the one hand, and the rules on services, on the other, lies on duration.2 Indeed, all EC manuals state four types of service provision falling under the EC Treaty: a) where the service provider moves to the recipient’s state, for a short period of time (longer stay would amount to establishment), b) where the service recipients themselves move to the state where the service is offered (eg for medical care, education, tourism etc), c) where both service providers and recipients move together in another member state (eg a tourist guide accompanying a group travelling abroad) and d) where the service itself is provided across the borders (typically through the use of ICTs). None of these situations would typically qualify as migration. The above ‘dissociation’ between services and migration has been gradually weakened in the recent years. Indeed, migration is increasingly connected to the transnational provision of services. This is the result of three kinds of factors: developments in the European Court of Justice’s (ECJ) case law; legislative initiatives in the EU; and the GATS. Each one of these is considered in some detail below. The aim of the analysis which follows is to show the extent to which (legislative and judicial) policies aimed at the free provision of services actively affect migration conditions within the EU. The EC rules on the provision of services primarily affect the movement of EU nationals. As it will be shown below, however, third country nationals (TCNs) may also claim the benefits of the rules on services, either as recipients thereof or as employees of some EC undertaking which is providing services in another member state (posted workers).

Disclosure of Leniency Materials: A Bridge between Public and Private Enforcement of Antitrust Law. Research Paper in Law 08/2013, December

The disclosure of leniency materials held by competition authorities has recently been under the spot. On the one hand, these documents could greatly help cartel victims to prove the damage and the causation link when filing damage actions against cartelists. On the other hand, future cartelists could be deterred from applying for leniency since damage actions could be brought as a result of the information submitted by themselves. Neither the current legislation nor the case law have attained yet to sufficiently clarify how to deal with this clash of interests. Our approach obviously attempts to strike a balance between both interests. But not only that. We see the current debate as a great opportunity to boost the private enforcement of antitrust law through the positive spillovers of leniency programmes. We hence propose to build a bridge between the public and the private enforcement by enabling a partial disclosure of the documents.

The Drivers of Current Account Surplus in Germany and the Politics of Rebalancing in the Eurozone. EU Centre, Singapore Working Paper No. 24, April 2015

Current account deficits have caught the public’s attention as they have contributed to the European debt crisis. However, surpluses also constitute an issue as a deficit in any country must be financed through a surplus in another country. In 2013, Germany, now the world’s largest surplus economy, registered a record high US$273 billion surplus. This paper looks at what accounts for Germany’s surplus, revealing that the major driving factors include strong global demand for quality German exports, domestic wage restraint, an undervalued single currency, high domestic savings rate and interest rate convergence in the euro area. This paper echoes the US Treasury’s view that a persistent German surplus makes it harder for the eurozone as a whole and the southern peripheral economies in particular to recover from the current financial crisis by imposing a Europe-wide “deflationary bias” through pushing up the exchange rate of the euro, exporting feeble German inflation and projecting its ultra-tight macroeconomic policies onto crisis economies. This paper contends that Germany’s trade surplus is likely to endure as Germany and other eurozone countries uphold diverging views on the nature of the surplus engage in a blame-game amidst a sluggish rebalancing process. Prizing the surplus as a reflection of hard work and economic competitiveness, German authorities urge their southern eurozone colleagues to undertake bold structural reforms to correct the imbalance, while the hand-tied governments in crisis-stricken economies call on Germany to do its “homework” by boosting German demands for European goods and services.

The Court of Justice of the European Union as a fundamental rights tribunal: challenges for the effective delivery of fundamental rights in the area of freedom, security and justice. CEPS Paper in Liberty and Security in Europe No. 49, 29 August 2012

This paper reflects on the challenges facing the effective implementation of the new EU fundamental rights architecture that emerged from the Lisbon Treaty. Particular attention is paid to the role of the Court of Justice of the European Union (CJEU) and its ability to function as a ‘fundamental rights tribunal’. The paper first analyses the praxis of the European Court of Human Rights in Strasbourg and its long-standing experience in overseeing the practical implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Against this analysis, it then examines the readiness of the CJEU to live up to its consolidated and strengthened mandate on fundamental rights as one of the prime guarantors of the effective implementation of the EU Charter of Fundamental Rights. We specifically review the role of ‘third-party interventions’ by non-governmental organisations, international and regional human rights actors as well as ‘interim relief measures’ when ensuring effective judicial protection of vulnerable individuals in cases of alleged violations of fundamental human rights. To flesh out our arguments, we rely on examples within the scope of the relatively new and complex domain of EU legislation, the Area of Freedom, Security and Justice (AFSJ), and its immigration, external border and asylum policies. In view of the fundamental rights-sensitive nature of these domains, which often encounter shifts of accountability and responsibility in their practical application, and the Lisbon Treaty’s expansion of the jurisdiction of the CJEU to interpret and review EU AFSJ legislation, this area can be seen as an excellent test case for the analyses at hand. The final section puts forth a set of policy suggestions that can assist the CJEU in the process of adjusting itself to the new fundamental rights context in a post-Lisbon Treaty setting.

Still the “pivot”: Russia’s self-conception and view of the euro crisis as perceived in public opinion and the Rossiiskaya Gazeta, 2011-12. EU Centre in Singapore Working Paper No. 8, August 2012

In his influential and disputed 1904 lecture, “The Geographical Pivot of History,” Halford Mackinder argued that the Russian heartland was the fulcrum of many historical and geostrategic currents across Eurasian space. While the thesis has been thought surpassed by recent technological advances in transportation, it serves as a useful heuristic device to open certain thematic lines of analysis apparent in the presentation of the ongoing “EUrocrisis” by the country’s newspaper of record, the Rossiiskaya Gazeta.

Access to environmental information in an Open European Society - Directive 2003/4. Research Paper in Law 5/2003

[From the Introduction]. Information gives knowledge and knowledge gives power. Though in all EC Member States, the task to protect the environment is given to the administration, it is obvious that the administration is not the owner of the environment. The environment is everybody's. It is for this reason that administrative decisions which affect the environment must be transparent, open and must strike a balance between the general interest to preserve, protect and improve the quality of the environment on the one hand, the satisfying of specific private or public interests on the other hand. In order to allow at least a certain control of whether the administration strikes the right balance between the need to protect the environment and other legitimate or less legitimate needs, it appears normal and self-evident that information on the environment which is in the hands of public authorities, be also made available to the public and to citizens.

The Arab Spring: where was the EU, and what is its future in the region? Jean Monnet/Robert Schuman Paper Series Vol. 13 No. 4, February 2013

From the Introduction. In 2010 the martyring of Mohamed Bouazizi began a ripple of civil uprisings across the Middle East, and would lead to a wave of revolutions that the media would dub the Arab Spring. From North Africa to the Gulf Region, these civil uprisings made major headlines but found little intervention on behalf of world superpowers such as the United States or the European Union. Acting as more of an observer than as an active participant in these revolutions, it would seem that the European Union played a small role in preventing civil unrest, or in aiding in the policing of these oppressive governments. By example of the passive position held by Europe during these revolutions, the EU appears to be ill equipped to handle security issues such as the massive revolutionary chain witnessed across the Mediterranean. Now, however, they have a new opportunity to be involved in a post- Arab Spring Mediterranean. This paper seeks to address some reasons behind the Arab Spring, describe the institutional framework previously and currently in place, as well as to analyze the progress of Europe’s relationship with the Mediterranean by analyzing the EU’s past and current role in the Mediterranean. It will also look at critiques of the EU’s role in the Arab Spring, as well as the opportunities to be taken in the Mediterranean region.

The emblematic statement of the Nobel Peace Prize. Jean Monnet/Robert Schuman Paper Series Vol. 13 No. 1, January 2013

From the Introduction. On October 12th the Nobel Committee announced that the annual Nobel Peace Prize would be awarded to the European Union for, “promoting peace, democracy and human rights over six decades”.1 This was a bit of good news for the EU who had produced nothing but bad press with the Euro Crisis, the bailouts of struggling countries like Greece, and protests in the southern member states of Spain, Portugal, and Italy. At such a momentous occasion the EU’s next challenge was to figure out who would be the rightful head of the EU to accept the award. The EU has made their decision by opting to send its top three officials Jose Manuel Barroso the President of the European Commission, Herman Van Rompuy the President of the European Council, and Martin Schulz the President of the European Parliament2 as a sign that the EU is not headed by one person but instead is an supranational economic and political bloc that seeks to unify the European continent. Their symbolic acceptance of the award is in response to what Geir Lundestad, the Secretary of the Norwegian Nobel Committee, called, “an accumulated record.”3 This record has ushered the EU into the international spotlight as a beacon for countries in the EU’s periphery to want to join the bloc.

Spain: foreign relations and policy. Jean Monnet/Robert Schuman Paper Series Special Issue 2, August 2012

From the Introduction. The subject of the position of Spain in the world (through history, recent times, and today) has been described by scholars and casual observers by a combination of qualifiers. It is considered paradoxical, unique and influential, riddled with isolation and ambition, resulting in frustration and success. In any event, Spain’s record in modern times has to be considered as below its potential in historical terms, geographical position, culture and world presence through migration and the results of the empire. In any way, Spain deserves to be included among one of about twenty five countries that, for one reason or another, play a role in the overall current global panorama. 1

Can the eurozone survive? Jean Monnet/Robert Schuman Paper Series Vol. 12, No. 4, May 2012

From the Introduction. As financial and economic turmoil continues to rock the Eurozone nations and even threatens to undermine the political stability in the region, it may be helpful to recall the circumstances that helped bring about the formation of the European Union and the common currency of the Eurozone. While issues of trade, finance, and economics were at the heart of many of the agreements upon which the European Union was founded, there were larger issues about a shared future for Europeans that went beyond fiscal concerns. As the economic conditions in Europe and the rest of the world appear to have brought the Eurozone to the brink of collapse, the question at hand is whether the strength of the euro and the economies of the Eurozone nations will be able to withstand the forces that threaten not just the economic ties among the nations of the Eurozone and the EU, but that also strain the historical, cultural, and political foundations on which those economic ties were forged.

EEAS 2.0. A legal commentary on Council Decision 2010/427/EU establishing the organisation and functioning of the European External Action Service. EIPA Working Paper, 2013

From the Preface. Pursuant to Article 13(3) of Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service, the High Representative is held to provide a review of the organisation and functioning of the EEAS by mid-­‐2013. This review will cover, inter alia, the implementation of Article 6(6), (8) and (11), so as to ensure an adequate geographical and gender balance and a meaningful presence of nationals from all member states in the EEAS. If necessary, the review will be accompanied by appropriate proposals for the revision of the 2010 Council Decision (e.g., suggestions for additional specific measures to correct possible imbalances of staffing). In that case, the Council will, in accordance with Article 27(3) TEU, revise the Decision in light of the review by the beginning of 2014. This short and user-­‐friendly legal commentary on the 2010 Council Decision is the first of its kind and is intended to inform those involved in the review process and to serve as a reference document for practitioners and analysts dealing with the EEAS. This commentary is not an elaborate doctrinal piece, but rather a textual and contextual analysis of each article, that takes account of i) other relevant legal provisions (primary, secondary, international), ii) the process leading to the adoption of the 2010 Council Decision (i.e. travauxpréparatoires), iii) the preamble of the Council Decision, and iv) insofar as it is possible at this stage, early implementation. Wherever relevant, cross-­‐references to other provisions of the EEAS Council Decision have been made so as to tie in the different commentaries and ensure overall consistency.

The Single Supervisory Mechanism: A Sound First Step in Europe’s Banking Union? Egmont European Affairs Paper, March 2013

The financial and economic crisis has hit Europe in its core. While the crisis may not have originated in the European Union, it has laid bare structural weaknesses in the EU’s policy framework. Both public finances and the banking sector have been heavily affected. For a long time, the EU failed to take into account sufficiently the perverse link that existed between the two. Negative evolutions in one field of the crisis often dragged along the other in its downward spiral. In June 2012, in the early hours of a yet another EU Summit, the leaders of the eurozone finally decided to address the link between the banking and sovereign debt crises. Faced with soaring public borrowing costs in Spain and Italy, they decided to allow for the direct European recapitalisation of banks when the Member State itself would no longer be in a position to do so. In exchange, supervision of the banking sector would be lifted to the European level by means of a Single Supervisory Mechanism. The Single Supervisory Mechanism, or SSM in the EU jargon, is a first step in the broader revision of policies towards banks in Europe. The eventual goal is the creation of a Banking Union, which is to carry out effective surveillance and – if needed – crisis management of the banking sector. The SSM is to rely on national supervisors and the ECB, with the ECB having final authority on the matter. The involvement of the latter made it clear that the SSM would be centred on the eurozone – while it is to remain open to other Member States willing to join. Due to the ongoing problems and the link between the creation of the SSM and the recapitalisation of banks, the SSM became one of the key legislative priorities of the EU. In December 2012, Member States reached an agreement on the design of the SSM. After discussions with the European Parliament (which were still ongoing at the time of writing), the process towards making the SSM operational can be initiated. The goal is to have the SSM fully up and running in the first half of 2014. The decisions that were taken in June 2012 are likely to have had a bigger impact than the eurozone’s Heads of State and Government could have realised at the time for two important reasons. On the one hand, creating the SSM necessitates a full Banking Union and therefore shared risk. On the other hand, the decisions improved the ECB’s perception of the willingness of governments to take far-reaching measures. This undoubtedly played a significant role in the creation of the Outright Monetary Transactions programme by the ECB, which has led to a substantial easing of the crisis in the short-term. 1 These short-term gains should now be matched with a stable long-term framework for bank supervision and crisis management. The agreement on the SSM should be the first step in the direction of this goal. This paper provides an analysis of the SSM and its role in the creation of a Banking Union. The paper starts with a reminder of why the EU decided to put in place the SSM (§1) and the state of play of the ongoing negotiations on the SSM (§2). Subsequently, the supervisory responsibilities of the SSM are detailed, including its scope and the division of labour between the national supervisors and the ECB (§3). The internal functioning of the SSM (§4) and its relation to the other supervisors are discussed afterwards (§5). As mentioned earlier, the SSM is part of a wider move towards a Banking Union. Therefore, this paper sheds light on the other building blocks of this ambitious project (§6). The transition towards the Banking Union is important and will prove to be a bumpy ride. Before formulating a number of conclusions, this Working Paper therefore provides an overview of the planned road ahead (§7).