Cases involving patients such as Mrs Yvonne Watts, who travelled from the UK to France for a hip replacement to avoid a ‘waiting list’ in the UK, relying on rights in European Union (EU) law, attract high levels of media attention. While the vast majority of patients are either unwilling or unable to travel across borders to receive health care, it is clear that some patients are seeking health care abroad. Although data on patient mobility within the EU are significantly limited, nevertheless, a relatively steady, small but not insignificant number of patients are moving across borders within the EU to receive health care. This paper considers the current legal framework on the rights in EU law of those patients who seek health care in another Member State. As the right to seek private health care abroad is (largely) non-contentious, and has been a well-established feature of EU law since at least the mid 1980s, the focus of this paper is on publicly or quasi-publicly funded health care.

This chapter explores the relationship between tort law and criminal law. In particular it tracks one line of developments in the procedural co-ordination of criminal and civil law: the ability of criminal courts to award compensation for harm. It is a study of legal change or development: how and why law has evolved from the middle of the nineteenth century through to the present day. The chapter is also comparative, looking at the English and Spanish legal systems. The history of powers to compensate has highlighted two fundamentally different ways to resolve claims based on a concurrently tortious and criminal wrong. The English system has slowly moved from disparate and piecemeal provisions to a general if under-theorised system. On the other hand, Spain created a novel and complete system of liability to be administered by the criminal courts. This chapter seeks to trace and explain this development with a view to understanding how much civil and criminal law can perform the same function: compensation.

This article provides a constitutionally grounded understanding of the vexing principle of ‘national procedural autonomy’ that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of ‘autonomy’, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the case law of the Court of Justice of the European Union may be considered through the lens of ‘prudential avoidance’, ie the decision to avoid difficult constitutional questions surrounding the principle of conferral. As the last Part shows, a constitutional understanding of ‘national procedural authority’—not ‘autonomy’—helps clear up some persistent puzzles, and provides critical guidance for when deference to national procedures and remedies is appropriate, and when such deference is misplaced. Comparative references inform the argument along the way.

The prevailing view on the rationale for State aid control is that it should be the same as, or very similar to, the rationale for competition control. It is certainly true that State aid distorts competition, as the economic definition presupposes. However, there is a subtle difference between the two, and we should return to orthodoxy in our analysis of these two concepts. The rational for State aid control is in fact to be found in the logic of the internal market principles. The tools to be used in analysing it are not identical to those used in the antitrust context. Rather, the free movement perspective should be adopted, and most problems in the arena of State aid can be better understood when approached from that perspective. It is also true that State aid procedures can be used to monitor compliance with free movement rules, and so the functional identity between the two sets of provisions is confirmed. State aid is a regulatory restriction on freedom of movement, and State aid control is an essential part of the functioning of the internal market, and so it makes sense to treat it in the same way as any other regulatory measure which has such an effect.

At least three generations of governance methods have been—and are still being—used for the regulation of the internal market: the classic EU method, leading to harmonisation and (more rarely) unification; the ‘new approach’ based on mutual recognition and the use of standards; and ‘new governance’ which does not entail any formal delegation of powers to the EU and operates through self-regulation, the creation of EU agencies and networks, administrative cooperation and other means of open coordination. It is impossible to establish either a hierarchy or a clear chronological order between these methods, while it is also quite difficult to reach a clear conclusion as to their efficiency. What is certain is that all methods of governance are under constant adjustment and that they all feed into one another in order to secure the smooth operation of the internal market. The interaction between these methods is the topic of the present chapter.

The directive on Services in the Internal Market is one of the most controversial and disputed pieces of European legislation in recent years. Known in its infancy as the ‘Bolkestein’ Directive after Frits Bolkestein, the Internal Market Commissioner who first put forward the proposal on behalf of the Commission, and later in the run up to its adoption as the ‘Frankenstein’ Directive, it sparked mass protests across Europe and was even suggested by some as being the real reason why France voted against the draft Constitutional Treaty in 2005.

This article proposes two broad ways to conceptualise EU competition law. EU competition law could be viewed as ‘autonomous law’ (‘AL’), namely as a closed normative system a technocratic tool consisting in a set of rules that prohibit undue restraints of trade. Or, EU competition law could be viewed as ‘responsive law’ (‘RL’), namely as a relatively open normative system and an interpretive practice that oscillates between openness and integrity. The responsiveness approach offers a compelling conceptualisation as it explains certain endogenous features of EU competition law: its fuzzy mandate, conceptually elastic vocabulary, and use of rules and standards. In addition, the responsiveness approach can clarify the role economics plays in EU competition law. It views economics as an ‘ideological science’, which, even though it cannot insulate this legal field from value disagreements and make it ‘autonomous’, it can provide a source for positive and normative interpretive statements. On this basis the responsiveness approach maintains that EU competition law is by design open—ie conceptually elastic and factually sensitive—and that its openness can enhance, but also undermine its integrity—ie its capacity to realise its objective in a rule of law compatible manner. These conflicts between openness and integrity are the cause of EU competition law's relative indeterminacy. To deal with the problem of indeterminacy, the RL approach proposes a tripartite legal-institutional modus operandi consisting in constructive interpretation, responsive enforcement, and catalytic adjudication. Hence, considering EU competition law as a form of responsive law has three major implications: first, it offers a new way for understanding how this legal field works and changes; second, it suggests a strategy for dealing with EU competition law's indeterminacy, and third it proposes a new framing for the discursive practices of EU competition law's epistemic community.

EU data protection law has, to date, been monitored and enforced in a decentralised way by independent supervisory authorities in each Member State. While the independence of these supervisory authorities is an essential element of EU data protection law, this decentralised governance structure has led to competing claims from supervisory authorities regarding the national law applicable to a data processing operation and the national authority responsible for enforcing the data protection rules. These competing claims – evident in investigations conducted into the data protection compliance of Google and Facebook – jeopardise the objectives of the EU data protection regime. The new General Data Protection Regulation will revolutionise data protection governance by providing for a centralised decision-making body, the European Data Protection Board. While this agency will ensure the ‘Europeanisation’ of data protection law, given the nature and the extent of this Board’s powers, it marks another significant shift in the EU’s agency-creating process and must, therefore, also be considered in its broader EU context.

The Court of Justice of the European Union has historically rejected references to preparatory work in the interpretation of EU Treaties. However, the preparatory work for the EURATOM, Maastricht, and Constitutional Treaties have played a role in recent judgments. The ‘explanations’ to the Charter of Fundamental Rights are expressly approved in the current Treaties. We examine the emerging case law on preparatory work. Reference to the drafters’ intent does not necessarily support dynamic interpretation, and may potentially even ossify historical interpretations. Even if the consequence of their introduction is a conservative interpretation, their use raises questions of transparency and democracy, and complicates the already difficult task of interpreting the EU constitution.

In recent years, pesticides have captured the attention of both policymakers and the general public. A particular focus has been the transparency of the EU-level procedure for approving active substances, spurred by controversies surrounding the active substance glyphosate. Active substances are the ingredient in pesticides with the pesticidal effect. Once an active substance is approved at EU level, the pesticide containing that active substance must be authorised by each Member State. For this purpose, the EU's 2009 Plant Protection Product Regulation divides Member States into three zones—Northern, Central, and Southern—within which, zonal rapporteur Member States evaluate applications for authorisation. National authorisation decisions are based on these zonal evaluations. This novel system governing pesticides is under-researched. Furthermore, unlike active substance approval, the transparency of pesticide authorisation escapes public and policy scrutiny. Drawing on empirical research conducted for the European Parliament, this article evaluates the transparency of the zonal pesticide authorisation procedure. It thus contributes to the literature on transparency a detailed exploration of transparency in a highly complex, decentred, and polycentric risk regulation regime. While it finds that the zonal pesticide authorisation procedure, generally speaking, does not operate transparently, it argues further that levels of transparency within the regime as a whole may vary significantly depending on multiple different factors. It introduces the concept of ‘chiaroscuro regulation’ to characterise and understand these varying levels of transparency across different elements of the regime and considers some of its implications.

The intersection between competition law and intellectual property has been a contentious issue since the very beginnings of European Communities (EC) competition law. Both intellectual property and competition law pursue the aim of enhancing economic welfare and innovation, but their direct objectives seem to be in conflict. Whereas intellectual property focuses on the reward of inventive effort and the inventor’s incentives to innovate by conferring an exclusive right on the use of the invention, competition law emphasises the dissemination of innovation by ensuring diffusion and access.

So much disinformation about the Treaty establishing a Constitution for Europe—‘the Constitutional Treaty’, as I shall call it—has been disseminated by the media in this country (and not only here) that there is an urgent need to put the record straight. I am going to tackle the problem in two ways: first, by trying to assuage some false and exaggerated fears of changes that are either fictional or minor; and, secondly, by evaluating what seem to me to be the main changes the Constitutional Treaty is designed genuinely to bring about.

In the last 20 years, the application of EC competition law by the Commission has been increasingly informed by economics. However, whilst the Commission has operated an economically enlightened regime in the field of merger control as a whole, its policy on conglomerate mergers and ambiguity over the role of efficiencies have received adverse comment. Several defeats in the Court of First Instance suggested poor handling of economic evidence in the merger review process.

This chapter focuses on the extent to which public health has been relied upon by the EU legislature or by Member States of the European Union to limit the freedom of commercial operators to promote their goods and services. First, it discusses why courts in the United States and in Europe have ruled that the freedom of commercial operators to advertise their goods and services should be protected, in light of the fundamental role advertising plays in a liberal market economy. It shows that freedom of commercial expression has been made conditional upon the disclosure of sufficient and reliable information to consumers, thus reflecting a model of consumer protection based on the well-informed and reasonably circumspect consumer. Secondly, it addresses the more controversial question of the extent to which public health may be invoked as an overriding requirement of public interest to curtail the right of commercial operators to promote their goods and services. The approach of the Court of Justice is compared with that taken by the US Supreme Court. This comparative approach highlights the differences between the two: the former is very reluctant to exercise its review powers, while the latter has made it excessively difficult for public authorities to impose any meaningful advertising restrictions. It is argued that neither court has been able to strike a suitable balance between, one the one hand, the need to review the validity of restrictions imposed by public authorities on commercial speech to ensure a high level of public health protection and, one the other hand, the need to ensure that courts do not substitute their assessment to that of the legislature in exercising their judicial review powers. A more balanced approach is required to ensure the adequate protection of consumer health.

There is without doubt a radical difference between the culture of open government in Sweden and the until recently prevailing culture of secrecy in Britain and within the European Union. From a classic British sceptic’s perspective, “public access to official documents is deemed unnecessary, since British democracy has functioned for so long without it”. The British “have always relied heavily, although not always successfully, on the concept of ‘ministerial responsibility’ to Parliament in order to secure public trust in government”. The mainstream of eighteenth-century British political thought held that the nation’s political well-being required the foundation of an informed gentleman citizenry. By the middle decades of the eighteenth-century, the movement away from the idea of a citizenry composed exclusively of gentlemen was firmly established on both sides of the Atlantic. It became increasingly acknowledged that men of the “meaner sort” should have the right to hold opinions on public affairs and ought to be allowed to protest against governments and laws they deemed improper.

Family law has long been considered a domain which virtually escaped any impact from European Community law. Insofar as European cooperation was aimed at economic integration in the context of the EEC, the arguments in favour of keeping it that way seemed obvious and convincing. Today, the relationship between European law and (international) family law is often viewed in an entirely different way. The explanation for this shift lies in the broad, functional approach adopted by the European Court of Justice (ECJ) to the free movement of persons in the European Union, as well as in the transformation of the Community from the EEC into the EC and its incorporation into a ‘European Union’ (EU) not exclusively oriented towards economic integration.

Constitutional pluralism is a theory for the post-sovereign European state. This only makes sense historically, emerging out of postwar European reconstruction through the repression of popular sovereignty and restraining of democracy, including through the project of European integration. It became unsettled at Maastricht and evolved from a series of irritants into a full-blown crisis in the recent decade, with sovereignty claims returning both from the bottom-up and the top-down, to the extent that we can legitimately ask whether we are now moving ‘beyond the post-sovereign state’? Constitutional pluralist literature fails to capture this in that evades material issues of democracy and political economy.

To the extent that the UK's decision to withdraw from the EU can be interpreted as a reassertion of the classic ideas of Westphalian sovereign statehood, it questions the relevance of constitutional pluralism as a resolutely ‘post-sovereign’ model of relations between state administrations and their supranational counterparts. This contribution will therefore examine the usefulness and relevance of the idea of constitutional pluralism after Brexit. It looks at the various features and relationships affected by the Brexit process analysing the relevance of constitutional pluralism to each relationship pre- and post-Brexit, concluding that, whereas Brexit clearly affects the different relationships involved, constitutional pluralism can and will remain relevant to EU/UK relations as well as within the EU, well into the future.

Artificial Intelligence (‘AI’) technologies present great opportunities for the investment management industry (as well as broader financial services). However, there are presently no regulations specifically aiming at AI in investment management. Does this mean that AI is currently unregulated? If not, which hard and soft law rules apply?

Investments are a heavily regulated industry (MIFID II, UCITS IV and V, SM&CR, GDPR etc). Most regulations are intentionally technology-neutral. These regulations are legally binding (hard law). Recent years saw the emergence of regulatory and industry publications (soft laws) focusing specifically on AI. In this Article we analyse both hard law and soft law instruments.

The contributions of this work are: first, a review of key regulations applicable to AI in investment management (and oftentimes by extension to banking as well) from multiple jurisdictions; second, a framework and an analysis of key regulatory themes for AI.

It appears more and more often that cases brought before the European Court of Justice raise issues relating to two or more fundamental rights and the relation between them. In such situations, it is often necessary to establish a ‘balance’ between the fundamental rights concerned. In some cases, one of the rights involved is not a fundamental right in the strict sense but, for instance, an economic freedom (such as the free movement of goods) recognised under the basic EU Treaties. Another configuration may be a situation where, for instance, two of the fundamental rights which are at issue are to be found in the EU Charter of Fundamental Rights but only one of them appears in the European Convention on Human Rights. In such situations, one wonders what would be the relevance of Article 52(3) of the Charter of Fundamental Rights, which establishes a direct link between the Charter and the European Convention. The present contribution will look at the question of balancing of EU fundamental rights in general and also at more specific problems arising in this context, such as the two problems identified above.