Youssef nada is a 77-year-old man, who lives in the tiny commune of Campione in Switzerland. He is not allowed to leave this commune. Nor can he access his financial accounts, despite being a senior figure in the world of banking. The problem Mr Nada faces is that his bank, the Al Taqwa bank, is associated with the Moslem Brotherhood and that Mr Nada—an Egyptian by birth—is also connected with this organisation. Among his adversaries is the Egyptian Government of Hosni Mubarak, which desires to get him back to Cairo, where it is clear his safety could by no means be guaranteed. After the attacks of 11 September 2001, Mr Nada also incurred the enmity of the US Government. He found himself placed on a UN sanctions black-list—hence the restrictions on his movement and financial dealings.

According to Article 267 TFEU, a ‘court or tribunal of a Member State’ can make a preliminary reference to the Court of Justice. The Court applies a single, homogeneous definition of a ‘court or tribunal’. This has allowed it to admit references from those specialised, independent, administrative bodies that in several Member States have been established instead of administrative courts to decide claims under public law, including EU law. Whether such a ‘dispute settling’ body is entitled to submit a preliminary reference normally depends upon whether it commands sufficient ‘independence’ vis-à-vis both the parties to the dispute and the public administration as such. The Court has tightened these requirements appreciably in connection with the threats against the independence of the judiciary in some Member States, and the consequent more prominent roles that Articles 19 TEU and 47 of the Charter have come to play. Whereas safeguarding the rule of law is of utmost importance, these provisions pursue objectives within the Union's legal order which are materially different from those pursued by Article 267. In this article, it is therefore argued that the Court should apply different constructions of the independence criterion with respect to these provisions.

The European Neighbourhood Policy (ENP) is inherently political in nature. The rationalistic considerations underpinning its launch and subsequent elaboration have necessarily influenced the choice of the legal framework. At the same time, the rules regulating the conduct of EU foreign policy had a reciprocal impact on policy choices made. The legislative and political developments following the ratification of the Lisbon Treaty and the regional split in the policy arguably injected new dynamics into the interaction between the political and legal aspects of the ENP.

The chapter traces the relationship between the political objectives and the legal framework of the ENP through three phases of its existence, with a focus on the eastern neighbourhood, comprising Belarus, Ukraine, Moldova and the South Caucasus, as the addressee of the exclusionary rationale of the policy. First, the formulation and the elaboration of the initiative is revisited as the first phase of the existence of the policy. The second phase concerns the ‘Eastern Partnership’ initiative established as a result of the regional split within the policy. The third phase refers to the law and political objectives of the ENP as translated into Article 8 TEU.

This Article interrogates the role of national constitutional courts within the Article 267 TFEU preliminary reference mechanism from both descriptive and normative angles. First, I demonstrate that although a clear majority of the constitutional courts submit references to the ECJ on a more frequent basis, differences in individual approaches remain significant. Subsequently, I argue that the core normative attractivity of the questions submitted in the course of domestic constitutional review lies in their participative and deliberative potential. Compared to ordinary courts, constitutional courts are better suited to amplify the ‘unheard’ voices of immobile EU citizens. By counterbalancing the demands of the EU's functional constitution, which is primarily based on the ideals of market capitalism, constitutional courts’ questions may contribute to the EU's capacity to generate legitimate decisions. Finally, I put my theoretical claims in context and analyse the main ways in which such deliberative potential can translate into practice.

The case law of the Court of Justice of the EU concerning the Common European Asylum System (CEAS) is still limited. Nonetheless, even this limited case law already offers interesting insights into analysing the potential role of the Court of Justice of the EU in the development of the CEAS, and this jurisprudence is in any event likely to grow significantly, due to the fact that the provisions of the CEAS are the result of a political compromise and so lack clarity. This chapter examines the ruling delivered by the Court in the case of Elgafaji, which contains certain elements which address the interpretative difficulties raised by Article 15(c) of the Qualification Directive, and goes on to consider, through a discussion of the recent ruling in Abdulla, the extent to which the Court’s interpretation of those provisions of the CEAS which replicate the wording of the 1951 Convention will influence the interpretation of this international instrument, and the difficulties presented in this context. The extent of this influence remains to be seen, but it is clear in any event that the Court of Justice is likely to play a major role in the development of the CEAS. One amendment which may prove necessary is the modification of the Court of Justice’s procedural rules such that it can take into account the views of third-party organisations with a special expertise in this field.

In a series of decisions the European Court of Justice [‘the Court’] has ruled that Member States must deploy their law enforcement authorities, including their criminal justice systems, so as to safeguard Community interests from threat or damage. These rulings have received attention from commentators because, amongst other things, they make it explicit that Community law has a tangible impact on matters of criminal law and justice notwithstanding the absence of a criminal legal base in the Community Treaty.

Maurice Lagrange was appointed Advocate General in 1953 and retired in 1964. He delivered over 80 Opinions in a period of 10 years, covering a wide range of issues. The first 40 or so Opinions concerned the European Coal and Steel Treaty (ECSC Treaty) exclusively, whilst the remainder covered all three Treaties.

From 1 January 2012, all flights departing from or arriving at the European Union are covered by the EU Emissions Trading Scheme (EU ETS). Amendments were made to Directive 2003/87/EC by Directive 2008/101/EC with the objective of reducing climate change impacts attributable to aviation, but also in order to avoid distortions of competition. The scheme now includes all airlines, including those from third countries, and accounts for emissions that occur partly outside the airspace of EU Member States. A large number of third countries claim that the extension of the Emissions Trading Scheme to legs of flights outside EU territory violates the principle of state sovereignty and deny the jurisdiction of the EU to regulate emissions that occur beyond its borders. So far, the validity of the EU regulation has been challenged by a claim brought by US and Canadian air carriers. They contended that, in adopting the Directive, the EU infringed principles of customary international law—in particular the principle of state sovereignty and the prohibition of extraterritorial application—as well as various international agreements. On 21 December 2011, the Court of Justice of the European Union ruled that the inclusion of emissions from aviation in the EU ETS is valid. In response, Chinese and Indian carriers threatened not to pay the charge, while US airlines pledged to consider other options. This chapter analyses the judgment of the Court and the opinion of Advocate General Kokott in this case. Particular attention is given to the question of extraterritorial jurisdiction and the understanding of state sovereignty in the context of global climate change mitigation. The chapter argues that the Court missed an opportunity to contribute to the clarification of the law on jurisdiction and to the development of climate law.

Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

This Article analyses recent developments in Union citizenship, in particular the relationship between Articles 20 and 21 TFEU. In doing so, it divides Union citizenship into a transnational and a supranational dimension with the transnational dimension having two sub-dimensions: social integration and autonomy. It is argued that we are seeing an increased emphasis on the responsibility of the individual citizen in the context of the transnational dimension and a clear linkage between the transnational and supranational dimensions. The result of these two moves is a status which continues to emphasise the relationship between the Union citizen and the communities represented by Member States, while framing this with a more prominent supranational dimension.

Brexit has the capacity to impact heavily on the agricultural sector across the United Kingdom in that it is a sector which has been both in receipt of substantial expenditure under the Common Agricultural Policy and subject to a pattern of close regulation at European Union level. This article will explore the legal implications for post-Brexit agricultural support, proceeding in three stages. First, there will be an outline of the current structure of the industry, with particular reference to its diversity in terms of physical landscape, operational scale and legal foundations. Secondly, there will be discussion of emerging policy within both central UK government and the devolved administrations. In this context, specific attention will be directed to the likely extent of funding and the proposed drive towards higher standards in environmental protection and animal welfare. And, in each case, account will also be taken of specific implications which flow from overarching World Trade Organization rules. Thirdly, there will be consideration of the potentially difficult issues which arise as a result of agriculture being a devolved matter, different policy imperatives already becoming evident across the constituent parts of the UK. For the present, the prospect is that a bespoke support regime will survive Brexit and, in this sense, agricultural ‘exceptionalism’ will continue. However, the more precise form of such a regime remains as yet work-in-progress and its realisation will present considerable challenges not only in political terms, but also by reason of the complex legal geometry in which World Trade Organization rules and the constitutional rights of the devolved administrations are weighty factors.

The impetus for this chapter is the extraordinary difficulties surrounding the adoption of the Lisbon Treaty. It aims to provide a framework within which to explore trust in EU law. The question of trust has become even more significant since the adoption of the Lisbon Treaty with the emergence of the fiscal crisis in Greece and in the wider eurozone. This chapter initially seeks to locate the question of trust within the much-discussed notion of the democratic deficit in the EU, drawing on the work of Snell. It argues that the question of democratic deficit raises questions about trust in the EU, and that institutionalised distrust is what is required in order to secure appropriate trust in EU law and governance. It then examines the nature of trust before turning to two major crises of distrust in the EU: the Irish referenda on the Lisbon Treaty and the ongoing difficulties presented to the eurozone of the indebtedness of some of its members.

In the new post-Cold War security era, there is a perception that the nature of cross-border security threats has changed. The need to respond to these new threats has led to a proliferation of multilateral international and regional treaties in this area, as well as unilateral demands made by the United States post-9/11. We have, then, seen a process of globalisation of criminal law, a field traditionally linked to State sovereignty. This chapter examines, first, EU action with regard to UN multilateral conventions and the impact of those conventions on internal EU law, as well as the impact of EU action within the framework of the regional treaties of the Council of Europe; secondly, the interrelationship between Union law and the global production of norms in criminal matters by the UN Security Council and by the Financial Action Task Force; thirdly, bilateral cooperation between the EU and the US, in particular in connection with the transfer of Passenger Name Records data; fourthly, the question of compliance by the EU in this area, in both the internal and the external context; and, fifthly, the Court of Justice’s approach to the protection of fundamental rights when global criminal law is engaged. The EU has managed to take centre stage in international developments in the field of global criminal law through a clear commitment to multilateral negotiations as well as a clear political will to implement at the Union level norms agreed internationally without a high degree of transparency. The Court of Justice has also been reluctant to overturn Union security decisions in the name of fundamental rights. The coming into force of the Lisbon Treaty will eliminate some complexity in this area, but not all, and it still remains to be seen whether in the process of globalisation of criminal law the European values proclaimed in Article 2 of the new EU Treaty will be promoted or compromised.

Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.

Kojève once wrote in a reply to Leo Strauss that the philosopher who contemplates action faces a conflict that constitutes the only authentic tragedy left in the Christian or bourgeois world:

One is inclined to add that the acting philosopher has a notoriously comic side, too, a side that has been exploited throughout the history of literature, from Aristophanes’ ‘The Clouds’ to the modern trope of the moronic impotence of the inept professor. But just as the comic fiction of Aristophanes’ ‘Clouds’ ultimately turned out to have had an actual tragic effect on Socrates’ life and death, so the modern depiction of the helpless philosopher is but a reflex on the troubled relation of philosophy and action.

From the perspective of public international law, the legal personality of the European Union (EU) carries with it the possibility for it to exercise rights and to bear obligations on the international plane. Its quasi-federal structure, however, requires consideration as to how these rights and obligations may be exercised. In this chapter, two regimes are compared: the EU’s rights and obligations as an international organisation and the possibility that its internal structures might be recognised on the international plane, thus leading to more complex notions of subsidiary responsibility, shared between the various levels of European governance.

In the course of attempts by the Thatcher administration to restrain the publication of Spycatcher, the memoirs of a former member of the security and intelligence services, the United Kingdom’s most senior civil servant, the Cabinet Secretary, was subjected to several days of intense cross-examination before Justice Powell in New South Wales and in the High Court in London. Sir Robert Armstrong’s testimony ranged across the recent history of government reactions to the proposed publication of sensitive information by former members of the security services and has since become a significant piece in the jigsaw of the British constitution.

Sometime around the year 1469, Giovanni Andrea, the Papal Librarian at the Vatican, noted that the Middle Ages were at an end and the modern world had just begun. From his standpoint at the intellectual centre of Christendom, a major transition was occurring.

All across Europe, Law, too, was in a state of transition at this time. We may take as our starting point an early piece of evidence of these changes which comes from the Southern Netherlands. It comes from the small village of St Peters, a village in which legal disputes were decided by local alderman, men who had had no formal legal training but who were very experienced in applying the customary law of the area. An issue had arisen whether a legal right of way had been gained by long use.

Sweden is well known as a high tax society and it is also well known for its spending on welfare. Just over 50 percent of GDP is consumed by taxation. This is an enormous amount of money. How is it possible to avoid strong conflicts between the citizen and the state? Must not this huge appetite for funding tempt the democratic state to pass the borderline and become almost a despotic state? How are human rights protected?