Freedom of information is an idea which has been high on the political agenda of western democratic societies for many years. It has been cultivated, propagated and sometimes misused in self-interested fashion by the media. Its meaning, always imprecise, has fluctuated. It has been recycled under the American terms of “openness” and “Government in the Sunshine”. Recently it has been once more recycled under the fashionable term “transparency”. In the European context, this imprecision has been detrimental to the development of logical and sturdy principles concerning transparency and access to information. What has emerged from the conceptual confusion has been a reliance on the more restricted administrative law rights of access to information in contexts where a constitutional right to transparency would have been more appropriate, with a consequential impoverishment of the transparency concept in EC law.

The chapter will consider what a margin squeeze is, whether it is appropriate for a competition authority to try and prevent margin squeezes using competition law rules and, if so, what tests can be used to identify an unlawful margin squeeze and to distinguish it from legitimate competition on the merits.

For many years now, there has been an attempt in the European Union to create a common legal framework for mortgage credit contracts and cross-border activities in the mortgage financial sector. One of the greatest challenges has been the establishment of a corresponding level of consumer protection in EU residential mortgage markets. This issue has become particularly important at the time of financial crisis. Consumers are increasingly exposed to the risk of losing their homes because of failing to fulfil, in due time, their obligations arising from mortgage loans, and thus losing confidence in the EU financial sector. Therefore, the European Union has intensified its efforts to improve consumers’ ability to inform themselves of the potential risks when entering into mortgage loans and mortgaging their real property. On 4 February 2014 the EU adopted the new rules on mortgage credits in the Mortgage Credit Directive. The main objective of the Directive is to increase the protection of consumers in EU mortgage markets from the risks of defaults and foreclosures. A higher level of protection must be ensured by consumers’ increased information capacity related to mortgage credits, as well as by developing a responsible mortgage lending practice across the EU. The Mortgage Credit Directive is also aimed at contributing to the gradual establishment of a single internal market for mortgage credits. In this chapter, the author analyses previous and current attempts by the EU to establish a uniform market of mortgage loans, and assesses the possible impact of the Mortgage Credit Directive on the protection of consumers in the market of mortgage credits and on the development of cross-border activities in the mortgage financial sector. Special emphasis is placed on the possible impact of the new EU rules on mortgages on national protection measures aimed at consumer protection at the time of financial crisis. The transposition of the Mortgage Credit Directive will undoubtedly contribute to a higher level of consumer protection when consumers enter into home loan contracts. However, the question arises whether, because of different levels of harmonisation of some rules laid down in the Directive, its implementation will actually contribute to an increase in cross-border home loans. The possibility for Member States to opt for increased consumer protection in some aspects of credit agreements when implementing the Directive, or the existence of different options for the exercise of individual rights that they may use cannot bring about an integration of mortgage credit markets.

My paper on the Corpus Juris project in the first volume of this Yearbook closed by saying, in effect, “Watch this space!” At the end it told how, at the time of writing, the European Parliament and Commission had re-engaged the original team that drafted the proposals, plus some others, and constituted them as a Comité du suivi with instructions to find out how hard or easy it would be to integrate the Corpus scheme into the existing legal systems of the Member States. And it also told how the House of Lords Select Committee on the European Communities had begun to carry out a study of the Corpus project.

This chapter considers European economic integration from the perspective of varieties of capitalism. It notes the main threats that integration potentially entails both for liberal and coordinated market economies, and assesses the likelihood of damage to the different models, in particular following the Lisbon Treaty. It is argued descriptively that both types of capitalism can continue to coexist in the European Union, and normatively that it is vital that the integration project is managed in a way that does not fundamentally endanger them.

It has been argued in many places, and in different forms, that the establishment between the EU Member States of an internal market, and now of an area of freedom, security and justice, requires the European Union to legislate in the field of fundamental rights, either in order to avoid a form of regulatory competition between the Member States or in order to ensure mutual trust allowing for mutual cooperation between judicial, police and administrative national authorities. ‘Negative integration’, in the form of the lowering of barriers to the movement of goods, services, persons and capital, or in the form of mutual recognition of judicial decisions or exchange of information between national authorities, should thus be followed with, or compensated by, ‘positive integration’, in the form of the setting of common standards applicable throughout the EU Member States. The EU Charter of Fundamental Rights, moreover, provides the baseline from which to act, since it represents a set of values which all the Member States have agreed to consider as fundamental. The question (so it would seem) is now that of implementing the Charter, by using the legal bases provided for in the treaties to the fullest extent possible.

Even though the bail-in tool is potentially helpful in resolving banks in crisis, it may still create the same issues that resolution is meant to prevent and/or avoid, namely contagion, financial instability and also systemic risk. Recent cases of bank restructuring have demonstrated that there are situations in which the use of the bail-in tool could end up being dangerous for the stability of the financial system. Obviously in such cases, the write down and/or conversion into equity of the bank’s liabilities must be avoided. At the same time, however, the disapplication of bail-in makes the provision of external resources necessary to rescue effectively the bank in crisis.

The EU legislator was aware of these potential issues and for this reason introduced a number of rules allowing, in certain situations, both the disapplication of the bail-in tool and the provision of external financing. Nevertheless, when the provision of external financing comes from the Member States, it has to comply with the rules of the State aid framework set by the Treaty on the Functioning of the European Union (TFEU) and applied by the European Commission. In this article, it is argued that despite the strict rules on State aid, there is still room to manage even difficult banking crisis situations in which the application of the bail-in tool could be counterproductive and therefore public intervention should take place through the so-called precautionary recapitalisation instead. However, in this regard, it is crucially important that the authorities intervene before the bank in trouble ‘crosses the line’ of insolvency, as some recent cases of Greek and Italian banks have demonstrated.

This chapter considers the legal status of labour rights as human rights within the European Union (EU) and the implications that this may have for free movement provisions under European Community (EC) law. This is not by any means a new subject for analysis and reflection, but has been of particular concern since the fifth enlargement of the EU which commenced in 2004. It is in this context that we have witnessed significant litigation before the European Court of Justice concerning the scope of the right to strike, and widespread protest concerning the adoption of a new Directive on Services in the Internal Market.

This Article argues that the cooperation obligations of the Member States under EU law are best understood as forming part of an overall duty of EU loyalty and elaborates on the consequences of framing it in this way. EU loyalty legally requires Member States to make the common EU interest their own. The Article further demonstrates that EU loyalty is more relevant and more stringently applied in EU external relations than within the EU legal order. Loyalty obligations of the Member States reach into the future, extend to hypothetical situations, and are at a comparatively high level of abstraction aimed to protect the Union's ability to act effectively on the international plane. This limits Member States’ margin of manoeuvre, including when they take unilateral external action within the realm of their retained national competences. The Article explains that this may be functionally justified by the high stakes of non-concerted external action. However, and in particular with the EU's increased external powers and the ever-growing relevance of international cooperation, the stringent application of cooperation requirements should be (better) explicated and justified.

In recent years, a platform economy has emerged that is dominated by undertakings such as Google, Amazon, Facebook, Apple, and Microsoft. They have established a form of private governance vis-à-vis their consumers and customers by means of standard terms that create a risk of exploitation. This trend clashes with the internal market effort of the EU that is predicated on consumer rights and fair competition to address market failures such as market power, information asymmetry, and asymmetrical contractual dependency. In this article we examine how the resulting tensions can be addressed by means of EU competition and contract law. This is based on enforcing fairness by requiring (1) the implementation of proportionality—balancing interests—and (2) respect of the duty of care, in the sense of compliance by design. Jointly this can be seen as an expression of accountability that needs to be made explicit. Apart from pre-existing case law and legislation, we take into account the December 2020 Commission proposals for platform regulation, as well as behavioural insights into consumer behaviour.

EU Opinion 2/13 on the accession of the EU to the ECHR was a landmark decision of the Court of Justice of the EU both for fundamental rights protection in the EU and the autonomy of the EU legal order. The present article argues that two approaches would have been possible, following either a discursive or an exclusive understanding of autonomy. As a thorough discussion of the Opinion shows, the Court chose the latter pathway, with detrimental consequences for the foreseeable future.

The right to work was until recently under-explored in academic literature and judicial decision-making. Classified often as a social right, it was viewed as a non-justiciable entitlement. Today, as the right to work is sometimes used as a slogan in favour of deregulation of the labour market, as well as a slogan against immigration and unionisation, the analysis of the right to work as part of a labour law agenda is crucial. Against this background, this chapter examines the right to work in the European Convention on Human Rights. Even though the right to work is not explicitly protected in the ECHR, the chapter identifies in the case law of the European Court of Human Rights certain principles that underpin the right to work, which can serve as guidance in the interpretation of existing provisions of the Convention.

How to understand and deal with the principle of mutual trust, its emanations, interpretations, and imperatives has in recent years become one of the central and most critical issues in the development of the Area of Freedom Security and Justice (AFSJ). Civil justice may be the dark horse with respect to mutual trust among the policy areas of the AFSJ in the sense that it may show useful but hitherto hidden possibilities and have an un-tipped winning strategy. In particular, the balancing safeguards in legislation, the importance of which have been confirmed in case law, are important to ensure the fundamental right to a fair trial. However, that does not mean that mutual trust does not pose challenges in the context of civil justice. Hence, it remains important to focus on how—normatively, and by which regulatory means—to support mutual trust as well as how to balance, and perhaps limit, its implementation in order to enhance its legitimacy. In addition, the recent pressures towards harmonisation need to be carefully analysed.

It is safe to say that any description of tax as ‘exciting’ tends to be greeted with at least mild scepticism by non-tax specialists. Yet the ECJ’s role applying the Treaty free movement rules in the direct tax sphere is one of the most exciting, controversial and seemingly intractable areas of ECJ competence at present. This paper seeks to demonstrate why no Community lawyer should miss out on the drama unfolding in Luxembourg.

The office of European Ombudsman was created by the Treaty of Maastricht. The first Ombudsman, Jacob Söderman, began work in September 1995. To judge by the number of requests for materials and interviews that the office receives, particularly from students, academic lawyers are well aware of the existence of the European Ombudsman. There is also a growing body of literature about the office. Many practising lawyers, however, remain uncertain about the scope and functions of the work of the European Ombudsman. This is partly because the concept of an ombudsman is not always well understood, even by specialists in public law. This article will explain what an ombudsman is, the relationship between the European Parliament and the European Ombudsman, and the nature of the latter’s work. The aim is to persuade colleagues working in the field of European public law that the office of the European Ombudsman is well worth monitoring.

The greater part of the EU budget comes from money paid directly by citizens of the Member States, or by those who do business with them, in the form of customs dues and VAT. Dishonest people therefore have the opportunity to enrich themselves at the EU’s expense by conducting their business affairs so as to evade payment of these taxes which their fellow citizens dutifully pay. Contrary to popular belief as fostered by the tabloid newspapers, very little of the 82 billion or so ECUs that the EU budget represents is swallowed up in fattening the wallets of MEPs and eurocrats, and nearly all of what comes in goes out again in the form of grants and subsidies. This gives dishonest people a further and even more tempting opportunity to enrich themselves at the EU’s expense by obtaining grants and subsidies to which they are not entitled. The most ingenious dishonest people find ways of cheating on both sides of the equation at once, and manage to evade taxes and fraudulently claim benefits simultaneously.

The new european Race Directive is one of the latest measures adopted by the Council of Ministers under its enlarged powers aimed at combating racism in the EU. This Race Directive reflects the strategic thinking of EU policy aimed at combating institutionally racist constraints on the free movement of persons within the Community. Nevertheless, this paper argues that the effectiveness of the Directive is likely to be limited. This potential impediment is premised on two factors: the textual ambivalence that surrounds the concepts of ‘race’ and ‘ethnicity’ and the scope of the instrument. In turn, these restrictions are indicative of a power struggle between the EU and nation states, a struggle that threatens to sideline the broader picture of institutional racism and how to defeat it.

The Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This chapter will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This chapter will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions—obviously without solving the problem completely—and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.

When courts are faced with questions regarding the territorial scope of internal legislation, they are required to engage with controversial issues pertaining to the permissible boundaries of regulatory reach, which go beyond traditional conceptions of state sovereignty and non-intervention on which the functioning of courts is normally based. This Article examines the role of the Court of Justice of the European Union (‘CJEU’) in reviewing the legality and interpretation of the extraterritorial reach of EU environmental law, including animal welfare. It assesses the extent to which judicial review by the CJEU serves as a transnational mechanism for addressing legitimacy concerns raised by the unilateral exercise of EU regulatory power beyond EU borders.

From the point of view of an individual, rights conferred by a legal system are only effective and substantive if there are effective remedies available if those rights are infringed. In some instances, those remedies may be pre-emptive; but in most instances, they seek to deal with infringements of rights, or damage to interests, which have taken place.