This article examines how European Union (EU) arms control measures are tailored to its constitutional foundations. EU Member States subject shipments of arms and components to controls so as to screen them for risks and potentially block them. In this context different Member States may make different geopolitical and humanitarian risk assessments. Existing EU measures have achieved only limited security screening harmonisation, and have left room for Member States to shirk their obligations under international humanitarian law. But in case of joint arms production, which the EU subsidises to become more autonomous, one Member State’s arms controls may block another State’s exports and thereby jeopardise cooperation. This article posits that any reform of EU arms controls should start by re-evaluating their present legal basis. A constitutional competence analysis shows that controls on arms shipments to non-EU states should be regulated in part through the Common Commercial Policy (CCP), and not just through the Common Foreign and Security Policy (CFSP). This would be consistent with other EU regulatory regimes for trade security. While a joint CFSP-CCP approach cannot fully prevent conflict, since this would require further foreign policy harmonisation, it could help foster security convergence and strengthen humanitarian due diligence mechanisms.

The absolute implementation of the originator control principle (‘absolute originator control’) allows the EU Member States’ national intelligence services to block the access of the European Parliament to confidential information necessary for the effective exercise of joint parliamentary scrutiny at Europol. This research paper will demonstrate that this is a flawed practice in need of urgent reform, since it violates some of the basic tenets of EU constitutional law enshrined in Article 13 TEU and Article 9 TEU. This legal problem is reframed with the help of trust theory, which reveals that absolute originator control causes the Union to be confronted with a constitutional dilemma that is irresolvable in the EU legal order: the Union is revealed to be a trustee to two trustors – the EU Member States and the EU citizens; to protect the interests of one trustor, the Union would necessarily have to betray the trust of the other trustor.

The present article seeks to identify the particular culture that undergirds the practice of EU law, by drawing from Paul Kahn’s Cultural Analysis of Law. It will do so by extracting from his work certain models for understanding the imaginative life of a political community, most importantly those of the rule of law and of political action, which in Kahn’s observation of American realities stand in competition to one another. This will lead us, first, to consider the particular place held by European integration, as a messianic project of collective transformation. While this might seem to structure the practice of EU law in a way that is consistent with Kahn’s description of political action, such a view, we will then submit, does not consider the particular place of law in the EU’s legal culture, as the very substance in which the European order appears incarnated, and which provides the impetus for much of its development. To account for these two dimensions in the political imaginary of the EU, it is argued that, unlike Kahn’s description of the American context, the rule of law and political action do not stand in tension with one another. Instead, the practice of EU law operates under an idiosyncratic frame of experience, which can be usefully associated to Robert Cover’s notion of “lawful messianism,” and which synthesizes key aspects of Kahn’s account of the rule of law and political action. Finally, to illustrate the operation of just that culture of lawful messianism and its persistence to this day, the article turns to the place of the rule of law as a “foundational value” of the European legal system and recent developments around this particular norm of EU law.

In the context of growing anxieties regarding the place and role of law in the future of the Europe Union (EU), this article reflects upon the extent to which Paul Kahn’s cultural study of law’s rule could be relevant for the place and role of EU law in these respects. Drawing upon Kahn’s monograph Making the Case: The Art of the Judicial Opinion, this article analyses the Laval judgment for these purposes, as one of the most controversial cases ever decided by the Court of Justice of the European Union (CJEU). On this basis, the article shows how the cultural analysis of law advanced by Kahn can help us to sharpen our sensibilities with regard to the deeper layers of moral and political meaning that EU law expounds and to thereby enable us to expand our horizons as well as conversations on the socio-political and economic composition of EU law. Yet this article also raises skepticism about the cultural study of EU law’s rule. Given the diverse cultural idiosyncrasies and traditions by which citizens of EU Member States live, it questions whether EU law can be assessed from the point of view of a collective identity believed to best persuade EU citizens of the authority of EU law.

The general principle of effective judicial protection grants the right to obtain a remedy in the fields covered by EU law and is an essential component of the EU enforcement toolkit. Recent jurisprudential developments have complexified the role of this principle, by transforming it into a vehicle for the enforcement of the rule of law in the EU. As a result, the principle of effective judicial protection appears as the factotum of the EU legal system: it acts as a fundamental right and is an expression of the EU rule of law; furthermore, it is a legal basis to influence national fundamental rights and to impose procedural obligations on the EU institutions. This overview Article offers a novel account of the evolution of this principle in the EU legal landscape. First, it reflects on the trajectory of this evolving principle in the EU case law and in the academic discourse. Second, it identifies conceptual issues surrounding the role of effective judicial protection in the EU legal order in the light of the latest jurisprudential developments.

This article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.

The relationship between the Court of Justice and the Bundesverfassungsgericht is perhaps one of the most explored relationships in all of EU’s legal history. In attempting to understand and operationalize the uncertainty surrounding the positioning between EU and national constitutional orders, they have in some respects followed the footsteps of a typical life-long love story: in the early years of European integration, both courts appeared to be in denial of any romance, and entered into a conflict over the question of the final arbiter; they subsequently turned to flirting by moving away from an institutionally based conflict towards finding a common substantive ground; which resulted in finally abandoning the competition for domination, but rather embracing mutual respect and a heterarchical relationship. This brief piece follows these developments in fundamental rights review that for now end with the second German decision concerning the right to be forgotten.

Conflicts of competences are ubiquitous in law. They represent a serious challenge, in particular, to global constitutionalism and institutional cosmopolitanism. This article argues from a participant’s perspective, following a normative-analytical approach. It develops new taxonomy of competence conflicts. In essence it defends a flexible legal solution to competence conflicts that is inspired by the idea of practical institutional concordance and provides a middle way between strict legal solutions and political appeals for dialogue. Legal authority beyond the state and competence admit of degrees and variability, depending on the legal and factual circumstances of the case at issue. This understanding is enabled by interpreting competences as formal principles. Drawing on research by Alexy and Kumm the details of balancing competences as a distinct legal method are elaborated, using a triadic scale and various factors for determining the concrete weight of a competence. The theory of balancing competences is then applied to the example of competence conflicts in the multilevel system of fundamental rights protection in the EU. In result, a universal but case-sensitive theory is presented that optimally combines flexibility and stability and allows for a pluralist understanding of sovereignty. Institutional cosmopolitanism is thus defended against sceptical pluralism.