Abstract
Provisional application has become a quasi-automatic corollary to the signature of mixed bilateral European Union (EU) agreements. Resort to provisional application is thereby informed by a ...rationale hitherto unknown in international law: it allows federal polities where the federal level does not have exclusive treaty making powers to develop an effective external action that is not hindered by that polity’s complex internal division of competences. This article argues that the EU has also developed a rather consistent practice in relation to provisional application. The EU thereby distinguishes between its treaty partners whereby some of them simply agree that the EU unilaterally determines the scope of provisional application. Because of the reference to the EU’s internal division of competence, the internal law of the parties, something that is typically not relevant under international law, acquires legal significance. The EU’s practice is found to be largely in line with the Draft Guidelines on Provisional Application that are being elaborated by the International Law Commission, although clearly it is also more refined on some points. Lastly, the article identifies one pressing issue which requires clarification, and which is not properly addressed in the Draft Guidelines. That is the question on the fate of the provisional application by the EU of part of a mixed agreement where one individual EU member state has decided not to ratify that agreement.
This Article compares the implementation of EMU law with the framework governing the implementation of EU law in general to determine whether that general framework has been complemented, adapted or ...transformed by the developments in the area of EMU Law. This Article finds that the legal framework governing the implementation of EMU law indeed deviates from the default framework. However, part of the sui generis framework for implementing EMU law is constitutionally mandated. On the other hand, it is less clear whether the ECB is entitled to supplement legislation or whether in fact it can only implement legislation. A second problematic aspect that this Article identifies is the significant role that the Council takes in implementing EMU law. Finally, it is in the area of EMU law that the Court identified a distinct type implementing power that is not covered by art. 291 TFEU or by other explicit legal bases in the Treaties that directly confer an executive power on the Council. The new type of power is not necessarily restricted to EMU law and can in principle be identified in other areas of EU law, showing the ramifications that the development of EMU law has on other areas of EU law.
On paper, the Lisbon Treaty radically changed the way in which EU law is implemented by defining a new institutional balance in Articles 290 and 291 TFEU, bringing decision-making in this area more ...in line with the traditional Community method. However, the real reform brought by the Lisbon Treaty depends on how the political institutions and the Courts interpret and apply the new Treaty rules. An analysis of seven years of post-Lisbon institutional practice and case law shows that in reality the institutions have largely undone Lisbon's reform, meaning that the post-Lisbon institutional balance in this area largely resembles the pre-Lisbon one and that decision-making in this area fails to align with the Community method ideal type.
Before 'FBF' was decided by the Court of Justice, it was described as a golden opportunity to transform a 'wind of change' into a 'perfect storm'. In this metaphor, the wind represented different ...national legal systems becoming increasingly receptive to the judicial review of soft law, while the perfect storm would be the Court of Justice revisiting its own restrictive approach towards the justiciability of soft law.
Fenix International is one of the relatively rare cases in the field of VAT that are ruled on by the Court sitting in its Grand Chamber formation. That in itself is an indication of the importance of ...the legal question at issue. The case revolved around the question what the limits are to the Council's exceptional power to implement EU law under Article 291 (2) TFEU. This annotation will reflect on the Court's solution after briefly setting out the facts of the case, the proposed solution of the Advocate General, and the reasoning of the Court itself. It was also one of the last preliminary references from a UK judge to arrive at the Court before the end of the transition period foreseen in the Withdrawal Agreement and it was the very last of the ordinary "British" preliminary rulings to be handed down by the Court of Justice on 28 February 2023.
Although the European Parliament v. Council of the European Union case relates to the pre-Lisbon comitology regime, the question put to the Court is also of vital importance for the post-Lisbon ...regime of delegated acts under Article 290 TFEU. This provision prescribes that the dividing line between (formal) legislation and delegated acts corresponds to the dividing line between the essential and non-essential elements of legislation, whereby delegated acts can only deal with non-essential elements. The distinction between essential and non-essential elements was already present in the old comitology regime, ever since the Koster case. In the present case the Court missed an opportunity to shed greater light on the dividing line between essential and non-essential elements of legislation. In its ruling, the Court merely confirmed that what is "essential" also depends on the policy field concerned; the new element (ie the notion of "political choices") introduced by the Court is far from clarifying either.
In his piece on Citizenship for Sale of 14 April 2024, Joseph Weiler criticizes the European Commission's infringement procedure against Malta's golden passport scheme. He names three reasons why the ...Commission should (or could) not have brought the case and the Court should not uphold it. While the present reply does not argue that the Court will necessarily find in the Commission's favour, the Commission's legal claim and strategy do not seem to be as (constitutionally) problematic as Weiler make them out to be.
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