Drafts by xavier groussot
European Papers, 2024
The digital era has brought about new security challenges, that we may know too well. What we kno... more The digital era has brought about new security challenges, that we may know too well. What we know by now is that security in the digital context (digi-security) is neither border centric nor a traditional security threat that can be contained into individual behaviour or respects traditional borders. It may affect both privacy issues at the individual level – and, importantly, state security, as is may be seen in different data attacks.
Digitalization is breaking boundaries in this sense. This digital field is now marked by a booming of EU regulations. What we see with the Digital Single Act (DSA) and Digital Market Act (DMA) and the forthcoming Artificial Intelligence Act (AIA) are frequent references to public policy and public security and the issue of crisis and response, but also, and for the DSA – frequent references to the EU Charter of Fundamental rights. In this essay we will also (particularly) raise issues related to at the e-privacy and PNR regulations, and more recent regulations, such as Regulation (EU) 2021/784 on addressing the dissemination of terrorist content online.
What does this mean for EU law – more particularly the tools, and method of EU law dealing with security issues? Arguably, traditionally national security issues, at least in EU law, have been state centric, in the sense, that under EU law, and in the assessment of the CJEU of Member States´ reaction, based on public security/public order issues, the focus has very much been on the appropriateness of the response of the State. In this context (of mass surveillance and anti-terrorism), there is also an ongoing battle as to who ultimately controls the ambit of core concepts of EU law the same time, – namely, national security, public security and public order. Is it the national court or the CJEU, which will ultimately call the definition and application of these concept – and where is the “battlefield”, classic free movement, or secondary EU legislation? This tension is reflected in number of fundamental rulings of the Court of Justice of the European Union (CJEU) that will form the core of this article.
What we want to do is to ask the question whether the traditional methods develop under the classic free movement case law are still relevant in the current climate? Are we able to draw a methodological link – between the old and the new, or has everything changed? We will focus on the role of proportionality – which is the common thread – and the role of the EU Charter of Fundamental Rights – which arguably is both the starting point of any legal analysis under EU law, nowadays, but also brings with it its own methodological framework. We will start to briefly revisit the classic approach in free movement up to more recent cases in that field. Thereafter, we will move into the issue of the role of secondary norms in the digital era with a focus on security (digi-security), and as they now must be interpreted in the light of the EU Charter – and what similarities we can draw from the classic logic of free movement and what has changed. Is this a visible or invisible change taking place in the context of digitalization and increase regulation at the EU level in this field, or is it much about same methods, but different context?
The Family in EU Law , 2024
It is fair to maintain that the right to family life is not only very close to people’s heart and... more It is fair to maintain that the right to family life is not only very close to people’s heart and is very profound, but at the same time, a delicate fundamental right which also relates – using a federal jargon – to the issues of localism. That means, that once we recognise that such a right exists, any limitation to the right has to be clear and concise, and with a purpose that outweighs this important right. It is vital to get the balance right and respect the essence of this fundamental right. In the adjudicative process, the EU Charter’s provisions on the right to family life and its attached rights such as articles 9, 21, 24 and 33 must here be interpreted in light of the horizontal clauses that guide the ‘competence valuation’, which takes place between the center and the periphery, i.e. between the European Union (EU) and its Member States. As we shall see, the citizenship provisions under Articles 20 and 21 TFEU, and enshrined in Title V of the EUCFR, are also crucial to the understanding and development of the fundamental family rights in EU law. This Chapter is divided into three sections. The first section discusses the relationship between the horizontal provisions of the EUCFR and the family rights. The second section focuses on the substantive developments of family rights related to the right to family life, whereas the third section assesses the role of the EUCFR in the citizenship case law related to the protection of family rights.
Nordic Journal of European Law , 2023
Looking at Article 2 TEU, this contribution considers that there is an external and an internal c... more Looking at Article 2 TEU, this contribution considers that there is an external and an internal crisis of values: the former referring to challenges to EU values coming from individual Member States which prioritize their own agendas and the latter referring to the tension between a liberal and more solidarity-driven understanding of the EU's foundations as it stems from the very wording of Article 2 TEU. In an attempt to unpack solidarity and offer a better understanding of its nature, scope and legal implications for the EU and its Member States, this contribution proceeds as follows: first, it studies solidarity within a specific methodological and theoretical framework based on a 'structured network of EU principles' established by the CJEU in the post-Lisbon era. Second, it operates under the assumption that a holistic understanding of EU solidarity requires us to go beyond the dominant form of solidarity based on the relationship between Member States ('interstate solidarity') and to explore the relationships between individuals ('interpersonal solidarity'). Our key argument is that a larger institutional recognition of 'interpersonal solidarity' has the potential to put the social question more squarely on the table and, as such, to enable the EU to better address the polycrisis it is facing. A 'Scellian approach' to EU solidarity-which places the person at the heart of the theoretical framework and as the real subject of solidarity is useful to adopt as a source of inspiration in such an endeavour.
EU Law Live, 2022
On 8 March 2022, the Grand Chamber of the
Court of Justice of the EU delivered its ruling in
case... more On 8 March 2022, the Grand Chamber of the
Court of Justice of the EU delivered its ruling in
case NE v Bezirkshauptmannschaft HartbergFürstenfeld II (C-205/20) (hereinafter NE II)
concerning the direct effect of the requirement of
proportionality of penalties provided in Article 20
of Directive 2014/67. By establishing the direct
effect of the said provision, the Court explicitly
overruled its previous case law on the matter fully
aligned with the Opinion of AG Bobek.
Common Market Law Review, 2022
The first area of discussion concerns the need to ensure the visibility of the EU Charter in both... more The first area of discussion concerns the need to ensure the visibility of the EU Charter in both EU law and at national level. This is not an easy task due to the complexity of many substantive and horizontal provisions of the Charter. Notably, the role of Article 51 of the EU Charter is to be discussed in detail in relation to the lack of visibility of the substantive provisions and their difficult invocability in certain circumstances. The second discussion relates to the overuse of the procedural rights/provisions of the EU Charter contra the limited use of the social rights/provisions enshrined in the Solidarity Chapter (Title IV). The bilan is crystal clear and points towards a clear dominance of Article 47 EU Charter (‘effective judicial protection’) in the Court of Justice case law, whereas the social provisions of the Charter constitute the parents pauvres of the European Bill of Rights and of the EU legal order in general. This conclusion is reflected and developed in many contributions of this book. The third area of discussion relates to the interpretation of the horizontal provisions of the EU Charter, where a lack of coherence is pointed out, particularly in relation to 52 of the EU Charter. The CJEU has developed a complex and incoherent interpretation of these provisions in developing for instance the ‘essence test’ and a bumpy doctrine of ‘corresponding rights’. The fourth and last area of discussion has an eye in the future and concerns the recent evolution in the CJEU case law as to the application of the EU Charter in Rule of Law issues. This development is fostered by the backsliding of the rule of law in many Member Sates of the European Union. The Charter in combination with Article 2 TEU and Article 19 TEU reveals to be an efficient instrument (at least more efficient than Article 7 TEU) to counter the systematic, perpetual and vile attacks committed by the illiberal States on the Rule of Law. Yet the proximity between the Rule of Law principles and the (constitutional?) principle of mutual trust in the CJEU case law appears to be problematic.
Nordic Journal of European Law, 2020
This brief note, on the Bundesverfassungsgericht ’s Weiss judgment of
5th May 2020, highlights... more This brief note, on the Bundesverfassungsgericht ’s Weiss judgment of
5th May 2020, highlights three implications of the German Federal Constitutional Court
’s landmark ruling and its constitutionalsignificance with implications for the wider context of Member States’ cooperation in the EU and European integration as a whole. We explain the relevant background of the judgment and argue thatthe specific issue created by the judgment might be addressed quickly but that the resulting judicial turmoil for the broader relationship between the law of the EU and the Member States can only be remedied bytreaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.)
Nordic Journal of European Law, 2020
This brief note, on the Bundesverfassungsgericht's Weiss judgment of 5th May 2020, highlights thr... more This brief note, on the Bundesverfassungsgericht's Weiss judgment of 5th May 2020, highlights three implications of the German Federal Constitutional Court's landmark ruling and its constitutional significance with implications for the wider context of Member States' cooperation in the EU and European integration as a whole. We explain the relevant background of the judgment and argue that the specific issue created by the judgment might be addressed quickly but that the resulting judicial turmoil for the broader relationship between the law of the EU and the Member States can only be remedied by treaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.).
Nordic Journal of European Law, 2020
On 5th May 2020, the Bundesverfassungsgericht (BVerfG) in Germany, ie the German Federal Constit... more On 5th May 2020, the Bundesverfassungsgericht (BVerfG) in Germany, ie the German Federal Constitutional Court (FCC), has delivered a landmark ruling of constitutional significance with implications not only for the specific policy areas concerned, but also in the wider context of Member States’ cooperation in the EU and European integration as a whole. We argue that the judicial turmoil it creates can only be remedied by much needed treaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.).
Article 52 the most complex and Article 53 the most underestimated. In the final sections it is h... more Article 52 the most complex and Article 53 the most underestimated. In the final sections it is highlighted that the judgments are illustrative that the ECJ strongly protects the level of protection of the Charter and the effectiveness and uniformity of EU law. However, it will also be shown that these two cases whilst clarifying the application of Article 51, and the meaning of implementing Union law, are the source of new questions rather than final answers.
The Court of Justice of the European Union's (CJEU, Court) SEGRO judgment is more than just a rec... more The Court of Justice of the European Union's (CJEU, Court) SEGRO judgment is more than just a recent addition to the debate on the so-called rule of law crisis in the European Union. As this case note shows, SEGRO touches on the most fundamental aspects of the European Union and its relation to the Member States. From an economic perspective, the Court in SEGRO's treatment of property rights and the ability of economic actors to rely on their lawfully concluded contracts forms the undercurrent of economic investment in the Union. From a functional perspective, the case is perhaps indicative of a wider change in the role of the Court with respect to national courts' margin of discretion. From a normative perspective, SEGRO gives rise to an important discussion on the difference between fundamental rights and economic freedoms in the EU since the entering into force of the Lisbon Treaty in 2009, as well as 'constitutional homogeneity' in the EU after Hungary's legislative reforms. Finally, from an evolutionary perspective, SEGRO marks another iteration in perhaps a wider shift in the trajectory of the Court with respect to questions that menace the integrity of the functioning of the European Union. This case note first examines the background (I) and facts of the case (II). Then it analyses the Opinion of the Advocate General (III) and the findings of the Court (IV). It concludes with a discussion based not only on an analysis of the SEGRO case (V), but also going beyond the case by analysing the most recent jurisprudential developments concerning Hungary and the issue of the (non-respect) of the Rule of Law in the European Union(VI). The Rule of Law is one star in a constellation of ideals that dominate our political morality: the others are democracy, human rights, and economic freedom. We want societies to be democratic; we want them to respect human rights; we want them to organize their economies around free markets and private property to the extent that this can be done without seriously compromising social justice, and we want them to be governed in accordance with the Rule of Law. 1
Digital technologies have undoubtedly changed the outline of the organization of the modern socie... more Digital technologies have undoubtedly changed the outline of the organization of the modern society and indicated an emergence of the new era of its governance. Such manifestations of digitalization as social media, platform economy, big data, AI, fintech, blockchain and internet of things have become an integral and sometimes even unnoticeable part of our life having brought up, on the one hand, new solutions to the long-running problems (for example, an increased possibility of dismantling arbitrariness in decision-making processes originally carried out by humans) and, on the other hand, new unresolved challenges that pose questions to the suitability of the current legal framework regulating the digital society that is characterized by high level of flexibility and unpredictability of the results that is, however, underpinned by partially identifiable initial risks. The peculiarities of hi-tech solutions require refashioning existing modes of regulation that in its turn has a drastic impact on the edifice of EU law, including one of its cornerstones, namely the doctrine of general principles. The general principles of EU law have always been notable for their capacity of being swiftly responsive to the transformations occurring in the society and being better equipped for addressing the alterations inevitably affecting the constitutional foundations of the EU.
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Drafts by xavier groussot
Digitalization is breaking boundaries in this sense. This digital field is now marked by a booming of EU regulations. What we see with the Digital Single Act (DSA) and Digital Market Act (DMA) and the forthcoming Artificial Intelligence Act (AIA) are frequent references to public policy and public security and the issue of crisis and response, but also, and for the DSA – frequent references to the EU Charter of Fundamental rights. In this essay we will also (particularly) raise issues related to at the e-privacy and PNR regulations, and more recent regulations, such as Regulation (EU) 2021/784 on addressing the dissemination of terrorist content online.
What does this mean for EU law – more particularly the tools, and method of EU law dealing with security issues? Arguably, traditionally national security issues, at least in EU law, have been state centric, in the sense, that under EU law, and in the assessment of the CJEU of Member States´ reaction, based on public security/public order issues, the focus has very much been on the appropriateness of the response of the State. In this context (of mass surveillance and anti-terrorism), there is also an ongoing battle as to who ultimately controls the ambit of core concepts of EU law the same time, – namely, national security, public security and public order. Is it the national court or the CJEU, which will ultimately call the definition and application of these concept – and where is the “battlefield”, classic free movement, or secondary EU legislation? This tension is reflected in number of fundamental rulings of the Court of Justice of the European Union (CJEU) that will form the core of this article.
What we want to do is to ask the question whether the traditional methods develop under the classic free movement case law are still relevant in the current climate? Are we able to draw a methodological link – between the old and the new, or has everything changed? We will focus on the role of proportionality – which is the common thread – and the role of the EU Charter of Fundamental Rights – which arguably is both the starting point of any legal analysis under EU law, nowadays, but also brings with it its own methodological framework. We will start to briefly revisit the classic approach in free movement up to more recent cases in that field. Thereafter, we will move into the issue of the role of secondary norms in the digital era with a focus on security (digi-security), and as they now must be interpreted in the light of the EU Charter – and what similarities we can draw from the classic logic of free movement and what has changed. Is this a visible or invisible change taking place in the context of digitalization and increase regulation at the EU level in this field, or is it much about same methods, but different context?
Court of Justice of the EU delivered its ruling in
case NE v Bezirkshauptmannschaft HartbergFürstenfeld II (C-205/20) (hereinafter NE II)
concerning the direct effect of the requirement of
proportionality of penalties provided in Article 20
of Directive 2014/67. By establishing the direct
effect of the said provision, the Court explicitly
overruled its previous case law on the matter fully
aligned with the Opinion of AG Bobek.
5th May 2020, highlights three implications of the German Federal Constitutional Court
’s landmark ruling and its constitutionalsignificance with implications for the wider context of Member States’ cooperation in the EU and European integration as a whole. We explain the relevant background of the judgment and argue thatthe specific issue created by the judgment might be addressed quickly but that the resulting judicial turmoil for the broader relationship between the law of the EU and the Member States can only be remedied bytreaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.)
Digitalization is breaking boundaries in this sense. This digital field is now marked by a booming of EU regulations. What we see with the Digital Single Act (DSA) and Digital Market Act (DMA) and the forthcoming Artificial Intelligence Act (AIA) are frequent references to public policy and public security and the issue of crisis and response, but also, and for the DSA – frequent references to the EU Charter of Fundamental rights. In this essay we will also (particularly) raise issues related to at the e-privacy and PNR regulations, and more recent regulations, such as Regulation (EU) 2021/784 on addressing the dissemination of terrorist content online.
What does this mean for EU law – more particularly the tools, and method of EU law dealing with security issues? Arguably, traditionally national security issues, at least in EU law, have been state centric, in the sense, that under EU law, and in the assessment of the CJEU of Member States´ reaction, based on public security/public order issues, the focus has very much been on the appropriateness of the response of the State. In this context (of mass surveillance and anti-terrorism), there is also an ongoing battle as to who ultimately controls the ambit of core concepts of EU law the same time, – namely, national security, public security and public order. Is it the national court or the CJEU, which will ultimately call the definition and application of these concept – and where is the “battlefield”, classic free movement, or secondary EU legislation? This tension is reflected in number of fundamental rulings of the Court of Justice of the European Union (CJEU) that will form the core of this article.
What we want to do is to ask the question whether the traditional methods develop under the classic free movement case law are still relevant in the current climate? Are we able to draw a methodological link – between the old and the new, or has everything changed? We will focus on the role of proportionality – which is the common thread – and the role of the EU Charter of Fundamental Rights – which arguably is both the starting point of any legal analysis under EU law, nowadays, but also brings with it its own methodological framework. We will start to briefly revisit the classic approach in free movement up to more recent cases in that field. Thereafter, we will move into the issue of the role of secondary norms in the digital era with a focus on security (digi-security), and as they now must be interpreted in the light of the EU Charter – and what similarities we can draw from the classic logic of free movement and what has changed. Is this a visible or invisible change taking place in the context of digitalization and increase regulation at the EU level in this field, or is it much about same methods, but different context?
Court of Justice of the EU delivered its ruling in
case NE v Bezirkshauptmannschaft HartbergFürstenfeld II (C-205/20) (hereinafter NE II)
concerning the direct effect of the requirement of
proportionality of penalties provided in Article 20
of Directive 2014/67. By establishing the direct
effect of the said provision, the Court explicitly
overruled its previous case law on the matter fully
aligned with the Opinion of AG Bobek.
5th May 2020, highlights three implications of the German Federal Constitutional Court
’s landmark ruling and its constitutionalsignificance with implications for the wider context of Member States’ cooperation in the EU and European integration as a whole. We explain the relevant background of the judgment and argue thatthe specific issue created by the judgment might be addressed quickly but that the resulting judicial turmoil for the broader relationship between the law of the EU and the Member States can only be remedied bytreaty changes in the longer term in order to avoid the Mutually Assured Destruction (M.A.D.)