EU Legal Acts: Challenges and Transformations (Collected Courses of the Academy of European Law)

In this collection of essays, originally presented at the Academy of European Law in Florence, the changing landscape of the EU's legal acts is explored. Further to this, the changing boundaries between legal acts and processes which may create norms but do not create 'law' in the traditional sense are analysed. This landscape is presented in two ways. Firstly, by focusing on the transformations and challenges to the EU's traditional legal acts, in particular since the reconfiguration of the categories of legal acts and the procedures for which they are adopted by the Lisbon Treaty. Secondly, the collection focuses on those acts found at (or beyond) the margin of classic EU legal acts, including acts of Member States such as inter se treaties; self-regulation and collective agreements; so-called soft law; and decision-making outside the normal legislative procedures. The volume endeavours to explain the adaptability of the EU legal order provided that the legal instruments at the Union's disposal appear to be identical to when the Treaty of Rome came into force 60 years ago. It also explores the challenges that the producing and quality of acts pose for the EU's legal order, such as alterations to institutional balance and the roles of the different institutional actors and challenges to the rule of law. Cover EU Legal Acts: Challenges and Transformations Copyright Contents Table of Cases CJEU CASES (IN NUMBER ORDER) GENERAL COURT CASES (IN NUMBER ORDER) NATIONAL CASES Table of Legislation EU LEGISLATION INTERNATIONAL CONVENTIONS BILATERAL/TRILATERAL AGREEMENTS Notes on Contributors Introduction 1. Legal Acts and the Challenges of Democratic Accountability 1. Introduction 2. Background: The Lisbon Reforms to Legal Acts A. Hierarchy B. Typology 3. Legislative Acts and Accountability A. De Jure Accountability B. De Facto Accountability 4. Delegated Acts and Accountability A. Treaty Provisions versus Institutional Practice 5. Implementing Acts and Accountability A. Controlling the Commission—The New Comitology Regulation B. Controlling the Council? 6. Accountability and Non-legislative Acts Based on the Treaties 7. Concluding Remarks A. Reforming Legislative and Executive Rule-making B. Constitutionalizing Executive Rule-making Procedures 2. The Politics of Efficient Compromise in the Adoption of EU Legal Acts 1. A Legal Framework for Political Deliberation 2. The Politics of Legal Basis in the EU Legislative Process A. The Choice of Legal Basis is a Constitutional Matter B. The Choice of Legal Basis is Based on Objective Factors C. Between Formal Rules and Informal Practices 3. Politics of Compromise and Participation in the Ordinary Legislative Procedure A. A Framework of Informal Rules B. Commission Proposal C. European Parliament D. Council E. Trialogues F. The Culture of Political Deals 4. Time for a New Sort of a Compromise? 3. Abnormal Sources and Institutional Actions in the EU Sovereign Debt Crisis—ECB Crisis Management and the Sovereign Debt Loans 1. Two Areas Explored in Order to Test Abnormality 2. Constructing the EU’s Sovereign Debt Crisis Sources: ECB Crisis Management and Sovereign Debt Loan Assistance A. The ECB and Crisis Management 1. Providing Enhanced Liquidity to Banks or Other Credit Institutions in the Eurozone 2. Enhanced Liquidity to National Banks Via Emergency Liquidity Assistance 3. Bond-Buying Programmes Conditional on Policy Reforms and Asset Purchase Programmes 4. Member of the Troika Managing the Roll-Out of Sovereign Debt Loan Assistance 5. Enhanced Surveillance of ‘at Risk’ States B. Loan Assistance 1. No EU Loan Mechanism, No EU Money 2. Exceptional EU Loan Mechanisms: The EFSM and the EFSF 3. Permanent Funding Mechanism: The ESM 4. Greece II—Greece III 2015: Distinct Loan Mechanisms and ECB Intervention 3. There is No Alternative? Law and Policy Choices and the Implications for Abnormality in EU Sovereign Debt A. The Bank-Focused Alternative B. The State-Focused Alternatives C. The EU Policy Choice: Conditional Life Support for ‘Failing’ States 4. Abnormality 1: Rule of Law Measurement A. Formal Rule of Law Measurement B. Procedural Rule of Law Measurement 5. Abnormality 2—ECB Mandates Are Abnormal Because of Conditionality, Contamination, Accumulation, and Absence A. The ECB as a Lender of Last Resort to Banks 1. Providing Enhanced Liquidity to Banks or Other Credit Institutions in the Eurozone 2. The ECB and the Provision of Emergency Liquidity Assistance B. The ECB and Sovereign Debt 1. Bond-Buying and Troika Membership: The Acceptability of Fiscal and Social Conditionality 2. The Telling Examples of Ireland in 2010 and Greece in 2015 6. Abnormality of Legal Sources in the EU Sovereign Debt Crisis as an Alternate Means of Calibrating the Presence of Institutional Variation or Constitutional Mutation 4. New Governance in the EU afterthe Euro Crisis—Retired or Reborn? 1. Introduction—New Governance in 2017 2. What was ‘New Governance’? 3. New Governance and the Euro Crisis 4. The EU’s ‘New’ Economic Governance A. Revisability B. Differentiation C. Domesticization and Procedural Constraint 5. New Economic Governance’s Normative Core: Experimentalism or Harmonization? 6. The Future of New Governance among the EU’s Legal Acts 5. The Social Dialogue as a Source of EU Legal Acts—Past Performance and Future Perspectives 1. Introduction 2. Social Partners in EU Law—Not Just Any Stakeholder 3. Social Dialogue in the EU—An Output Analysis 4. Interaction between EU Legislation and EU Collective Bargaining 5. Testing the Outcome of Social Dialogue 6. Representativeness, Legality, and Appropriateness A. Representativeness B. The Legality Test C. The Appropriateness of Legislative Action at EU Level 7. Outlook 6. Treaties between EU Member States as Quasi-Instruments of EU Law 1. Introduction 2. Complementary Agreements 3. Partial Agreements 4. International ‘Side Agreements’ in the Euro-Area Crisis Context: the EFSF, the ESM, the Fiscal Compact, and the SRF Agreement 5. The Agreement on the Unified Patent Court 6. Conclusion 7. EU Acts and Member State Acts in the Negotiation, Conclusion, and Implementation of International Agreements 1. Introduction 2. Article 218: General Issues A. Article 218 in the Constitutional Order of the Union B. Anatomy of Article 218 TFEU C. The Meaning of ‘Agreements’ 3. Decisions on the Opening and Conduct of Negotiations A. The Initiation of the Procedure B. The Council’s Decision 1. Nature of the Act 2. Nomination of the Negotiator 3. The Negotiating Directives and the Consultative Committee 4. Decisions on Signature and Conclusion A. Ways of Expressing Consent to Be Bound B. Is Signature and Conclusion a Council Monopoly? C. Legal Basis of Decisions on Signature and Conclusion 1. Rule (i) 2. Rules (ii) and (iii) 3. Rule (iv) 4. Joint TFEU/CFSP Legal Bases D. The Role of the European Parliament in the Conclusion of Agreements 1. The Meaning of ‘Exclusively’ in Article 218(6), Second Subparagraph 2. The European Parliament’s Right under Article 218(10) TFEU to Be Kept Informed 3. Agreements that Require the Consent of the European Parliament for their Conclusion E. The Council’s Voting Rule 5. Decisions under Article 218(9) TFEU A. The First Limb of Article 218(9)—Decisions on Suspension B. The Second Limb of Article 218(9)—Decisions on Positions to Be Taken within DMBs 1. Drafting History 2. The Post-Lisbon Procedure 3. Must the DMB Have Been Set Up by an Agreement to Which the EU is Party? 4. The Meaning of ‘Acts Having Legal Effects’ 5. Legal Basis of Decisions on Positions within DMBs 6. Article 218 TFEU and Member States’ Sovereign Powers 7. Concluding Remarks Index Présentation de l'éditeur : "In this collection of essays, originally presented at the Academy of European Law in Florence, the changing landscape of the EU's legal acts is explored. Further to this, the changing boundaries between legal acts and processes which may create norms but do not create 'law' in the traditional sense are analysed. This landscape is presented in two ways. Firstly, by focusing on the transformations and challenges to the EU's traditional legal acts, in particular since the reconfiguration of the categories of legal acts and the procedures for which they are adopted by the Lisbon Treaty. Secondly, the collection focuses on those acts found at (or beyond) the margin of classic EU legal acts, including acts of Member States such as inter se treaties; self-regulation and collective agreements; so-called soft law; and decision-making outside the normal legislative procedures. The volume endeavours to explain the adaptability of the EU legal order despite the fact that the legal instruments at the Union's disposal have not fundamentally changed since the Treaty of Rome came into force 60 years ago. It explores the challenges that new decisional procedures and variations in the legal quality of EU acts pose for the EU's legal order, including alterations to institutional balance and the roles of the different institutional actors and challenges to the rule of law." In this collection of essays, originally presented at the Academy of European Law in Florence, the changing landscape of the EU's legal acts is explored. Further to this, the changing boundaries between legal acts and processes which may create norms but do not create 'law' in the traditional sense are analysed. This landscape is presented in two ways. Firstly, by focusing on the transformations and challenges to the EU's traditional legal acts, in particular since the reconfiguration of the categories of legal acts and the procedures for which they are adopted by the Lisbon Treaty. Secondly, the collection focuses on those acts found at (or beyond) the margin of classic EU legal acts, including acts of Member States such as inter se treaties; self-regulation and collective agreements; so-called soft law; and decision-making outside the normal legislative procedures. The volume endeavours to explain the adaptability of the EU legal order despite the fact that the legal instruments at the Union's disposal have not fundamentally changed since the Treaty of Rome came into force 60 years ago. It explores the challenges that new decisional procedures and variations in the legal quality of EU acts pose for the EU's legal order, including alterations to institutional balance and the roles of the different institutional actors and challenges to the rule of law.-- Publisher's website