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- Lehrstuhl für Öffentliches Recht, insbesondere Europarecht und Völkerrecht (Univ.-Prof. Dr. Wolfgang Weiß) (75) (remove)
The Union legislator has recently amended the Aarhus Regulation with the aim of bringing it more in line with the requirements the Aarhus Convention lays down. EU State aid decisions, however, remain excluded from its scope. This exclusion raises questions that form the object of this contribution. The article argues that the arguments presented to justify the continued exclusion of State aid review are not convincing. By not complying with the re-commendations of the ACCC, the EU is in clear violation of international law. Therefore, the article deliberates over the necessary changes and possible exemptions for a sound im-plementation of the Aarhus Convention against the procedural specificities of State aid review, considering also the Commission´s recently presented options, which contain a number of problematic aspects.
This introductory article makes the case for studying joint institutional frameworks (JIFs) in EU bilateral agreements and provides an overview of the remaining contributions to the sympo-sium. In doing so, it addresses contemporary policy developments and theoretical debates in political science and international institutional law. It considers the rationale, design, perfor-mance as well as legitimacy of JIFs both in general and, in particular, in the EU's contractual bilateral relations. By mapping out the variety of JIFs in distinct geographical and regulatory contexts, the article develops an overarching argument about the ‘transversal’ nature of such structural frameworks, focusing on the most prevalent structural principles and rules, joint bodies and special procedures, including those not covered in detail in the other contribu-tions to this symposium.
Considering the new focus of the European Union (EU) trade policy on strengthening the enforcement of trade rules, the article presents the proposed amendments to the EU Trade Enforcement Regulation 654/2014. It analyzes the EU Commission proposal and the amendments suggested by the European Parliament Committee on International Trade (INTA), in particular with regard to uncooperative third parties and the provision of immediate countermeasures. The amendments will be assessed in view of their legality under World Trade Organization (WTO), Free Trade Agreement (FTA), and general international law and in view of their political implications for the EU’s multilateralist stance. Finally, the opportunity to amend Regulation 654/2014 to use it for the enforcement of FTA trade and sustainable development chapters will be explored. The analysis shows that the shift towards more effective enforcement should be pursued with due care for respecting existing international legal commitments and with more caution to multilateralism.
The introduction will describe the constant evolving global political context correlated to the events occurring, specifically, in the trade environment and the unprecedented challenges they pose for the EU Trade Policy. These identified and introduced challenges will be addressed in detail in the following book chapters. It will also introduce the reader to the individual contributions of the book and briefly present and anticipate the results attained.
General Comparative Report
(2012)
Biofuels and WTO Law
(2011)
Defining the EC Borders
(2003)
Establisment
(2002)
The book explores the impact of WTO law on domestic regulatory autonomy. It identifies and critically analyses the mechanisms working in WTO law that cause increasing interferences with domestic law and thus restrain the regulatory autonomy of the WTO members. The book proposes ways how WTO law be conceptualized to enhance the policy space of WTO members. Therefore, the book demonstrates the flexibilities in interpreting and applying WTO core principles and provisions and explores interpretive and institutional conceptions that could serve as a pathway of allocating greater policy leeway to WTO members.
The analyses presented address the disturbing observation that even though WTO law appreciates the regulatory leeway of WTO members in several provisions across agreements, the WTO judiciary´s case law, but also other governance mechanism active in the WTO appear to narrow down the WTO members´ regulatory autonomy and to considerably limit the space for domestic policy choices. Wide spread, even scholarly perception of the WTO, and most recently the Trump administration blame the WTO, in particular its dispute settlement branch, for being biased towards free trade and unduly restraining even legitimate domestic policies, and voiding the domestic policy space needed for addressing societal concerns and global problems. A closer look at the development of GATT/WTO law, however, reveals that, in GATT era, panels were aware of the effect their interpretations had on domestic policy space, and that some of the more recent WTO dispute settlement reports show attempts to expand WTO member´s leeway again. These observations are the starting point for an indepth analysis of the different mechanisms present in WTO law which impact on domestic regulation.
Since the Treaty of Lisbon, trade policy has become an explicit part of the EU's external policy and integrated into the general framework of the EU´s external policy, but must also be in conformity with internal policies. Thus, trade policy is subject to a requirement of multiple coherence. Beyond constitutional obligations, other drivers work for the inclusion of non-genuine commercial policy objectives in trade policy, such as the orientation of contemporary trade politics towards the behind the border issues of national regulation, so that trade policy became closely intertwined with domestic regulatory policy. Therefore the actors primarily responsible for legislation, i.e. parliaments, advocate for their extended participation in determining trade policy, and rightly so for reasons of transparency, control and political inclusiveness. Parliaments thus become actors of respect for and positive consideration of non-commercial policy objectives in trade policy, which applies as well to the European Parliament (EP). Hence, an institutional design of policy formulation cycles and decision-making in EU trade policy that strives for better coherence of trade concerns with NTPOs must focus on strengthening the influence of the EP and improve its participatory rights in decision-making and its control and monitoring mechanisms. Consequently, the present paper derives proposals for improving EP´s monitoring mechanisms for the benefit of non-trade policy objectives (NTPOs) in trade policy from an analysis of weaknesses in the negotiation and implementation stage of trade policy.
The European Commission presented, in its White Paper on the Future of Europe, scenarios on the future of the EU in 2025, which prompt the question as to their meaning for the future of EU administrative law. This article explores the implications of the scenarios for the future of EU executive rulemaking and its constitutional consequences. As some scenarios imply a more powerful political role of the Commission, and almost all expand the scope and usage of executive rulemaking, the executive power gains induce the need for more distinct constitutional guidelines for executive rulemaking and for strengthened parliamentary control, to preserve the institutional power balance between legislative and executive rulemaking. The analysis develops proposals insofar and demands respect for constitutional barriers already enshrined in EU primary law but not sufficiently addressed yet in institutional practice.
As WTO members increasingly invoke security exceptions and the first panel report insofar was issued in Russia-Traffic in Transit, the methodical and procedural preliminaries of their adjudication must be reassessed. The preliminaries pertain to justiciability and to the proper interpretive approach for their vague terms that seemingly imply considerable discretion to WTO members, all the more as general exceptions are subject to expansive interpretation. Reading security exceptions expansively appears not viable as they miss the usual safeguard against abuse (i.e. the chapeau of Arts XX GATT/XIV GATS). This lack of safeguards rather suggests caution in conceptualising them expansively, as do the systemic consequences of recent attempts to re-politicise security exceptions which run the risk of nullifying the concept of multilateral trade regulation altogether. Furthermore, the appropriate standards of review and proof must be explored which have to strike a balance between control and deference in national security.
The present contribution analyses the Opinion 1/17 of the CJEU on CETA, which, in a surprisingly uncritical view of conceivable conflicts between the competences of the CETA Investment Tribunal on the one hand and those of the CJEU on the other hand, did not raise any objections. In first reactions, this opinion was welcomed as an extension of the EU's room for manoeuvre in investment protection. The investment court system under CETA, however, is only compatible with EU law to a certain extent, which the Court made clear in the text of the opinion, and the restrictions are likely to confine the leeway for EU external contractual relations. Due to their fundamental importance, these restrictions, derived by the CJEU from the autonomy of the Union legal order form the core subject of this contribution. In what follows, the new emphasis in the CETA opinion on the external autonomy of Union law will be analyzed first (II). Subsequently, the considerations of the CJEU on the delimitation of its competences from those of the CETA Tribunal will be critically examined. The rather superficial analysis of the CJEU in the CETA opinion is in contrast to its approach in earlier decisions as it misjudges problems and therefore only superficially leads to a clear delimitation of competences (III.). An exploration of the last part of the CJEU's autonomy analysis will follow, in which the CJEU tries to respond to the criticism of regulatory chill (IV). Here, by referring to the unhindered operation of the EU institutions in accordance with their constitutional framework, the CJEU identifies the new restrictions for investment protection mechanisms just mentioned, which takes back the previous comprehensive affirmation of jurisdiction of the CETA Tribunal in one point and which raises many questions about its concrete significance, consequence, and scope of application.
Mixed agreements have been a preferred form of entering into international treaties chosen by the EU and its Member States, despite the complexities their usage implies. Recent attempts of the EU institutions to prefer the conclusion of EU only agreements to mixed agreements, as a consequence of the broad interpretation of EU exclusive trade competences by the CJEU in Opinion 2/15 are motivated by the hope for increased efficiency in EU treaty making. They, however, provoke criticism with regard to democratic legitimacy and the EU principle of conferral, which constrain the EU to adopt only those legal acts for which it is competent. As this criticism is particularly strong in Germany and led to constitutional challenges of EU only acts, the present contribution will explain the treatment of mixed agreements in the constitutional order of Germany and explore the constitutional challenges that EU only agreements pose to the German constitutional order. This discussion will thus show the German legal order’s continued preference for mixed agreements, in view of the jurisprudence of the German Federal Constitutional Court (FCC). Those constitutional challenges are particularly topical in view of the most recent case law of the CJEU that stressed the political leeway of the EU Council to choose, when it comes to the negotiation and conclusion of EU agreements based on shard competences, between either an EU only agreement or a mixed agreement. This political leeway turns mixity into a facultative endeavour in the hands of the Council. Under the constitutional perceptions of the FCC, such type of facultative mixity meets with considerable constitutional concerns because it replaces what was formerly held obligatory mixity.
This chapter identifies the most pressing challenges for the EU multilaterally oriented trade policy due to the changing global context for international trade and investment, caused by the shift of the US towards unilateralism and protectionism and by the re-orientation of China´s exceptionalism towards becoming a more influential actor. It explores and assesses how EU trade policy copes with the new polarities and finally formulates proposals for the way forward for the EU multilateral trade policy. It will be shown that the current challenges are more fundamental in character and may last longer than currently anticipated. It will also highlight that maintaining unity in the EU determination of trade policy is of pivotal importance for addressing the challenges, which however might become more difficult.
After the invocation of security exceptions became more common, the first panel report ever on how to apply them has recently been issued in the Russia – Measures Concerning Traffic in Transit case. While this panel addressed the application of the security exception in a situation of threat to international peace and security, the question must be raised whether its approach also applies to the invocation of security exceptions for economic reasons. In this context, the present chapter focuses on the methodical preliminaries to applying security exceptions: Its application in WTO dispute settlement does not only prompt the question of the jurisdiction of WTO panels and the Appellate Body, but also pertains to the issues of standard of proof and standard of review. A related methodical issue concerns the feasibility of the expansive interpretive approach applied to the general exceptions to the security exception. Reading it in the same tune runs the risk of nullifying the concept of multilateral trade regulation altogether, even more so as the security exceptions miss the usual safeguard against abuse, i.e. the requirements of the general exceptions´ chapeau. The lack of such safety valve confirms that security exceptions are of a different character compared to other exceptions. This difference, however, may be difficult to maintain if security exceptions are also used to defend economic security interests. Finally, the application of security exceptions may - as debated with regard to other WTO exceptions - be subject to an inherent limitation against exterritorial application, which would restrain its scope of application in cases in which security measures against a third country intend to affect also the trade of WTO members, and could become relevant in assessing US sanctions against Iran.
This article takes the proliferation of EU soft law instruments in the management of the COVID-19 pandemic as an opportunity to analyse their effects and challenges to democracy and rule of law in the EU posed by the use of EU soft law in the implementation of EU law. A proposal will be made for a general legal framework on the adoption of administrative EU soft law in order to address them. Enhancing the legitimacy of EU governance requires a general legal framework that introduces minimum procedural, transparency and participa-tory safeguards and foresees looser rules for urgent soft measures. The article thus makes an original contribution by reconsidering the debate about EU soft law in the context of COVID-19 soft law with a view to its salience for domestic implementation of EU law and by developing core elements of a general legal framework.
Ex Officio Third Country Subsidies' Review: Similarities with and Differences to State Aid Procedure
(2022)
In May 2021 the European Commission tabled a draft Third Country Subsidies Regulation which stands between trade and competition policy. This new instrument establishes a review of third country subsidies with a view to addressing the competition distortion resulting from foreign subsidies granted to undertakings economically active in the EU internal market. As the new tool complements EU State aid scrutiny with a view to foreign subsidies, the present contribution compares the general procedures and provisions of the new regulation with EU State aid law. It will be shown that despite many similarities with State aid law, considerable differences remain which can be explained by looking at the different procedural and substantive context.
Democratization of good global governance: The EU's role in the Parliamentarization of trade policy
(2022)
The quest for good governance in trade relations occurs against the backdrop of an increa-sing politicization of trade policy. In the new reality of global value chains and servitisation, regulating trade goes far beyond technical issues of reducing entrance barriers, border measures and tariffs, but becomes a comprehensive endeavour of scrutinizing and policing behind-the-border political issues. Therefore, a call for raising the legitimacy of trade policy formulation and implementation rises. Hence, parliamentarisation of trade policy is ever more necessary. The EU's constitutional development and its practice in trade policy is a good example for more parliamentary involvement, which strengthens trade policy's legi-timacy, transparency, and public awareness. Thus, the EU indeed is, despite all weaknesses,
a pacemaker and hence good global actor to the benefit of democratisation of global trade governance, being an essential factor of good governance.
Wolfgang Weiss’ contribution on “Constitutional Challenges to EU Administrative Soft Law During the Covid-19 Pandemic and Some Proposed Remedies” Studies how during the Covid-19 pandemic, as EU member states struggled to deal with the pandemic, EU officials increasingly resorted to so-called “soft law” to provide guidance to member states. He concludes that, while there are benefits to using EU soft law for crisis management and domestic implementation of EU, he raises concerns regarding their challenges for democratic legitimacy and the rule of law. He contends that these challenges should be addressed by a legislative enactment that sets forth a general framework for the adoption of EU soft law, core elements of which should be stipulations of subsidiarity vis-a-vis executive rulemaking and minimum procedural, transparency and justification requirements for the adoption of Commission soft law. Their domestic effects and reviewability should be clarified as well.
The TCA (EU-UK Trade and Copperation Agreement) establishes a very comprehensive institutional framework with Partnership Council and diverse Committees having partly substantial decision-making powers for the development of the TCA. These considerable public functions prompt legitimacy concerns as to their democratic control, which this article explores in detail. It will be shown that the exercise of public powers by TCA treaty bodies meets with a sobering legal situation regarding democratic control mechanisms over treaty body decision-making at different levels. Thus, from a constitutional perspective, the legal and legitimate transfer of powers requires additional safeguards as to their democratic legitimacy. Solutions for better control of treaty body decisions by parliaments must be developed at several levels simultaneously.
Trade relations face unprecedented challenges, which has led to an increased politicisation and contestation of trade rules. In response, the EU has changed its trade policy under the motto ‘Open Strategic Autonomy’ towards a more as-sertive policy. The EU seeks to signifi-cantly expand its room of manoeuvre and to gain more autonomy by strengthening the en-forcement of its trade rights and by ensuring more effectively, including unilaterally, a level playing field. This re-orientation engenders several new or amended trade policy instru-ments, but meets with reservations as the renewed politicisation of EU trade policy will have internal consequences and raise demands for more democratic accountability of the Euro-pean Commission. The new policy instruments will enlarge its leeway in trade policy. The future of the EU's multilateral, rule- instead of power-oriented political stance becomes unclear, which might undermine its negotiation posi-tion in WTO reform and collide with the EU's respect for international law. The tensions of the EU's new hybrid approach with its international commitments even more fuel demands for increased accountability of the Commission as a safeguard against employing the new powers for protectionism and disrespect to international law. The contribution analyses the need for increased Commis-sion accountability in the redirected trade policy.
Introduction
(2018)
EU administrative law scholarship and practice remain confused about the reach and interrelation of arts 290 and 291 TFEU, which created the categories of delegated and implementing Commission acts. The introduction of these two different instruments of executive rule-making by the Lisbon Treaty has prompted attempts in delineating them, based on constitutional theories of separation of powers or functional differentiation. These attempts have failed to a large extent, all the more since the CJEU’s relevant case law has not been helpful in constructing a proper distinction. Today, recourse to arts 290 and 291 TFEU by the legislator takes place in the tension created between the fact that the Treaties, informed by an abstract constitutional distinction between legislation and execution, appear to have created categorically different acts, and the fact that delegated and implementing rule-making procedures in practice have become increasingly similar to each other. In simplified terms, the problem is that delegated and implementing acts appear – in terms of their foundation in primary law – as fundamentally different acts that are, however, adopted in practice through similar procedures, at the same time as their content and legal effects are indistinguishable in many or even in most cases. Yet, if we accept that the creation of two forms of Commission acts was prompted by some form of legal necessity or legitimate political will, then understanding the difference between delegating and implementing acts remains paramount.
Arts. 290 and 291 TFEU are notoriously hard to differentiate. However, there is some evidence that a separation on the basis of substantive regulation through delegated acts and procedural specifications by implementing acts is forthcoming. The substantive – procedural differentiation is not very clear cut, but it affords the institutions flexibility in answering new challenges while at the same time exerting some guiding force. This Conclusion describes the separation of delegated and implementing acts along the substantive – procedural differentiation but also points to problems ahead. Thus, constitutional ambiguity, an inappropriate reliance on pre-Lisbon doctrine and the lack of a common vision continue to plague the law on EU administrative rule-making. To find a way to fulfil the promise of simplification that is part of the Lisbon reform, the EU institutions will all need to take the procedural safeguards around delegated and implementing acts more seriously.
Der Vortrag auf der ICON Konferenz 2017 in Glasgow untersuchte wie vor dem EuGH verweise auf Vertrauensschutz benutzt wurden, um Weitergabe von Dokumenten anch Verordnung 1049/2001 zu bewilligen oder zu verweigern.
Vortrag gehalten auf der CES Konferenz 2017 in Glasgow zum e-government in der europäischen Zollunion.
Inuit and Subjects in EU law
(2017)
Vortrag auf der ICON Konferenz 2017 in Kopenhagen zur Konstruktion des EU Rechtssubjekts anhand der Inuit Rechtsprechung des EuGH
Searching for Order. Exploring the use of delegated and implementing acts in the EU customs code
(2017)
Artikel über Unterschiede in der gesetzgeberischen Ermächtigung der Kommission unter Art. 290 AEUV gegenüber Art. 291 AEUV anhand des EU Zollkode. Der Artikel findet empirische Unterschiede insofern als Art. 290 AEUV für die Ermächtigung der Festsetzung von 'Bedingungen' verwendet wird, und Art. 291 AEUV für die Ermächtigung zur Festsetzung von Verfahrensregeln.
The European Union adopts rules governing the protection of minors against harmful media content in the form of soft law. Using the example of media law and the theory of competition between legal orders, I try to shed light on the possible reasons for the regulatory choice of soft law. In the present paper, I propose that one important reason for the preponderance of soft law in a given policy area is the legislator’s ambition to bridge strongly converging policy fields with areas where diversity between Member States persists due to their varying cultural traditions and moral convictions.