General Principles of EU Law: The Ghost in the Platonic Heaven in Need of Conceptual Clarification. Pittsburgh Papers on the European Union Vol. 2, 2013

General principles are en vogue in EU law – and in need of conceptual clarification. A closer look at several concepts of principle in legal philosophy and legal theory sheds light upon the concept of general principles in EU law. A distinction between an aprioristic model of principle and a model of principle informed by legal positivism may contribute to clarifying the genesis of a (general) principle in EU law, as well as its nature and functions. This paper demonstrates that an evolution has taken place from a reliance on seemingly natural law inspired reflections of general principles via the desperate search to ground general principles in various kinds of sources based on a more or less sound methodology towards an increasing reliance on strictly positivistic approaches. Against this backdrop, general principles are likely to lose significance where there are other norms while retaining an important yet uncontrollable role where the traditional canon of sources is silent.

L’Europa sociale e il diritto: il contributo del metodo comparato [Social Europe and the law: the contribution of the comparative method]. WP C.S.D.L.E. "Massimo D'Antona" .INT - 94/2012

The essay explores the evolution of comparative law and the contribution of its more recent methodological results on the process of European social integration through law. The analysis of the comparative method in general glides on a discipline, such a as labour law, traditionally linked to the "nomos" of the nation state and looks at the process of its own supranationalization through the lens which is the comparative method; a method used mainly by the juridical format (national and supranational courts). The analysis focuses on the fixed term contract and on the vexing question of collective social fundamental rights vis a vis fundamental economic freedoms in the EU where national constitutional traditions and supranational principals risk collision due also to the comparative method.

Diritti sociali e crisi del costituzionalismo europeo [Social rights and the crisis of European constitutionalism]. WP C.S.D.L.E. “Massimo D’Antona”.INT – 95/2012

In the face of what looks like a real impasse of the the line of European constitutionalism, partly due to an orientation of the Court of Justice which tends to favor the protection of economic freedoms over the protection of social rights, two opposing trends occurr. The first amounts to a new "constitutional patriotism"; the second entrusts the protection of fundamental social rights no longer to a single Chart or to a single court but to a multi-level system of protection. A dialogue between the European courts that truly valorizes fundamental rights, however, might be hindered by what someone has seen as a resurgence of the dualist theories, evident in an ECJ’s decision as Kadi.

With or without you...judging politically in the field of Area of Freedom, Security and Justice? Research Papers in Law, 3/2007

From the Introduction. The study of the European Court of Justice’s (ECJ) case law of the regarding the Area of Freedom Security and Justice (AFSJ) is fascinating in many ways.1 First, almost the totality of the relevant case law is extremely recent, thereby marking the first ‘foundational’ steps in this field of law. This is the result of the fact that the AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999.2 Second, as the AFSJ is a new field of EU competence, it sets afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its member states, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) measure of the protection given to fundamental rights. The above questions beg for answers which should take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.3 Third, and as a consequence of the above, the vast majority of the ECJ’s judgments relating to the AFSJ are a) delivered by the Full Court or, at least, the Grand Chamber, b) with the intervention of great many member states and c) often obscure in content. This is due to the fact that the Court is called upon to set the foundational rules in a new field of EU law, often trying to accommodate divergent considerations, not all of which are strictly legal.4 Fourth, the case law of the Court relating to the AFSJ, touches upon a vast variety of topics which are not necessarily related to one another. This is why it is essential to limit the scope of this study. The content of, and steering for, the AFSJ were given by the Tampere European Council, in October 1999. According to the Tampere Conclusions, the AFSJ should consist of four key elements: a) a common immigration and asylum policy, b) judicial cooperation in both civil and penal matters, c) action against criminality and d) external action of the EU in all the above fields. Moreover, the AFSJ is to a large extent based on the Schengen acquis. The latter has been ‘communautarised’5 by the Treaty of Amsterdam and further ‘ventilated’ between the first and third pillars by decisions 1999/435 and 1999/436.6 Judicial cooperation in civil matters, mainly by means of international conventions (such as the Rome Convention of 1981 on the law applicable to contractual obligations) and regulations (such as (EC) 44/20017 and (EC) 1348/20008) also form part of the AFSJ. However, the relevant case law of the ECJ will not be examined in the present contribution.9 Similarly, the judgments of the Court delivered in the course of Article 226 EC proceedings against member states, will be omitted.10 Even after setting aside the above case law and notwithstanding the fact that the AFSJ only dates as far back as May 1999, the judgments of the ECJ are numerous. A simple (if not simplistic) categorisation may be between, on the one hand, judgments which concern the institutional setting of the AFSJ (para. 2) and, on the other, judgments which are related to some substantive AFSJ policy (para. 3).

Better use of resources is the means to growth, prosperity and welfare - but will the EU jump on the opportunity? EPC Commentary, 25 September 2014

As the new European Commission steps in and looks for ways to promote growth and competitiveness, its success will depend on what emphasis will be given to creating a more sustainable European economy. What will determine the EU’s competitiveness and comparative advantage on a global scene is how well we will respond to the ongoing economic and ecological crises – which are intertwined and reinforce each other. The big question is what emphasis will the new Commission and the EU as a whole give to promoting sustainable and greener growth, based on good management of natural resources and biodiversity, smarter use of resources and mitigating climate change?

Subsidiarity between Law and Economics. Research Papers in Law, 1/2005

From the Introduction. The present contribution is an attempt to raise awareness between the 'trenches' by juxtaposing the two approaches to subsidiarity. Subsequently, I shall set out why, in economics, subsidiarity is embraced as a key principle in the design and working of the Union and how a functional subsidiarity test can be derived from this thinking. Throughout the paper, a range of illustrations and examples is provided in an attempt to show the practical applicability of a subsidiarity test. This does not mean, of course, that the application of the test can automatically "solve" all debates on whether subsidiarity is (not) violated. What it does mean, however, is that a careful methodology can be a significant help to e.g. national parliaments and the Brussels circuit, in particular, to discourage careless politicisation as much as possible and to render assessments of subsidiarity comparable throughout the Union. The latter virtue should be of interest to national parliaments in cooperating, within just six weeks, about a common stance in the case of a suspected violation of the principle. The structure of the paper is as follows. Section 2 gives a flavour of very different approaches and appreciation of the subsidiarity principle in European law and in the economics of multi-tier government. Section 3 elaborates on the economics of multi-tier government as a special instance of cost / benefit analysis of (de)centralisation in the three public economic functions of any government system. This culminates in a five-steps subsidiarity test and a brief discussion about its proper and improper application. Section 4 applies the test in a non-technical fashion to a range of issues of the "efficiency function" (i.e. allocation and markets) of the EU. After showing that the functional logic of subsidiarity may require liberalisation to be accompanied by various degrees of centralisation, a number of fairly detailed illustrations of how to deal with subsidiarity in the EU is provided. One illustration is about how the subsidiarity logic is misused by protagonists (labour in the internal market). A slightly different but frequently encountered aspect consists in the refusal to recognize that the EU (that is, some form of centralisation) offers a better solution than 25 national ones. A third range of issues, where the functional logic of subsidiarity could be useful, emerges when the boundaries of national competences are shifting due to more intense cross-border flows and developments. Other subsections are devoted to Union public goods and to the question whether the subsidiarity test might trace instances of EU decentralisation: a partial or complete shift of a policy or regulation to Member States. The paper refrains from an analysis of the application of the subsidiarity test to the other two public functions, namely, equity and macro-economic stabilisation.2 Section 5 argues that the use of a well-developed methodology of a functional subsidiarity test would be most useful for the national parliaments and even more so for their cooperation in case of a suspected violation of subsidiarity. Section 6 concludes.

Social Content of the International Sphere: Symbols and Meaning in Franco-German Relations, CES Germany & Europe Working Papers, No. 02.2, 2002

“The Franco-German friendship is rich in memories and gestures that are at once important and symbolic, and that characterize the exceptional nature of the relationship between our two countries,” reflects former French economics minister and European Commission President Jacques Delors. Such symbolic acts and joint memories are not primarily about cooperation in specific instances. Rather, more generally, they denote what it means to act together. They lend significance to a relationship; they signify what is “at stake,” or what it is “all about.” They are about a deeper and more general social purpose underlying specific instances of cooperation. They are about the value and intrinsic importance that social relations incorporate. Symbols contribute to the institutionalization of social meaning and social purpose in dealing with one another. In this paper I clarify the concept of “predominantly symbolic acts and practices among states,” systematically explore such acts for the bilateral Franco-German relationship between the late 1950s and the mid-1990s, and scrutinize the specific meaning and effects that these practices have helped to generate and perpetuate.

Consensus, contradiction, and conciliation of interests: the geo-economics of the Energy Union. EPC Policy Brief, 8 July 2015

European Union energy policy calls for nothing less than a profound transformation of the EU's energy system: by 2050 decarbonised electricity generation with 80-95% fewer greenhouse gas emissions, increased use of renewables, more energy efficiency, a functioning energy market and increased security of supply are to be achieved. Different EU policies (e.g., EU climate and energy package for 2020) are intended to create the political and regulatory framework for this transformation. The sectorial dynamics resulting from these EU policies already affect the systems of electricity generation, transportation and storage in Europe, and the more effective the implementation of new measures the more the structure of Europe's power system will change in the years to come. Recent initiatives such as the 2030 climate/energy package and the Energy Union are supposed to keep this dynamic up. Setting new EU targets, however, is not necessarily the same as meeting them. The impact of EU energy policy is likely to have considerable geo-economic implications for individual member states: with increasing market integration come new competitors; coal and gas power plants face new renewable challengers domestically and abroad; and diversification towards new suppliers will result in new trade routes, entry points and infrastructure. Where these implications are at odds with powerful national interests, any member state may point to Article 194, 2 of the Lisbon Treaty and argue that the EU's energy policy agenda interferes with its given right to determine the conditions for exploiting its energy resources, the choice between different energy sources and the general structure of its energy supply. The implementation of new policy initiatives therefore involves intense negotiations to conciliate contradicting interests, something that traditionally has been far from easy to achieve. In areas where this process runs into difficulties, the transfer of sovereignty to the European level is usually to be found amongst the suggested solutions. Pooling sovereignty on a new level, however, does not automatically result in a consensus, i.e., conciliate contradicting interests. Rather than focussing on the right level of decision making, European policy makers need to face the (inconvenient truth of) geo-economical frictions within the Union that make it difficult to come to an arrangement. The reminder of this text explains these latter, more structural and sector-related challenges for European energy policy in more detail, and develops some concrete steps towards a political and regulatory framework necessary to overcome them.