Federico Casolari

The External Dimension of the EU Disaster Response

This chapter analyses how the European Union responds to overseas natural and man-made disasters, and discusses the main legal issues involved in Union’s action. The first part of the chapter is devoted to the existing instruments established by the EU institutions before the entry into force of the Lisbon Treaty. The analysis reveals a multifaceted scenario: besides some general tools, which are complementary and thus form a global platform for EU response in overseas disasters, the action of the Union has been developed through sector instruments that in some cases risk undermining the efficiency and coherence of the response. The second part of the chapter discusses the innovations introduced by the Lisbon Treaty in this domain. In particular, it shows how these innovations (such as the establishment of a general framework of the EU external action, the establishment of new co-ordinating tools and tasks, the provision of a new explicit legal basis for humanitarian aid) may contribute to ensure a more efficient and consistent management of the external dimension of the EU disaster response.

The EU’s hotspot approach to managing the migration crisis: a blind spot for international responsibility?

Announced by the European Commission in its 2015 European Agenda on Migration as one of the EU’s priority tools to face the “unprecedented” migration crisis the Union was experiencing, the “hotspot” approach consists of a common platform for EU agencies (namely, the European Asylum Support Office, Frontex, Eurojust, and Europol) to intervene, rapidly and in an integrated manner, in frontline Member States when there is a crisis due to specific and disproportionate migratory pressure at their external borders. The goal was to reduce the pressure at the borders of the most affected Member States to “normal” levels while ensuring the proper reception, identification, and processing of arrivals. This also explains why it was envisioned that the hotspot approach would decisively contribute to facilitating the implementation of the emergency relocation mechanism, which has been established in parallel by the Council on the basis of Article 78(3) TFEU to allow the transfer of people in clear need of international protection from Italy, Greece, and other Member States directly affected by the refugee crisis to the territory of other EU countries. Like the relocation scheme, however, the hotspot approach suffered significant delays in its set-up. Most importantly, it attracted several criticisms from NGOs and international actors due to concerns about the protection of migrants’ fundamental rights. Against this background, the present contribution makes some introductory remarks on issues of international responsibility under international law emerging from the implementation – by State and EU actors – of the hotspot approach. In particular, the analysis will focus on problems related to the attribution of conduct, in light of the large number of subjects involved in the relevant activities. In this respect, this contribution will highlight first the function of hotspots. Then, the discussion will analyze the position of different actors involved in the hotspot approach in light of the international law framework on international responsibility. An assessment of what has been discussed in the preceding sections is contained in the final part.

RESPECT FOR THE RULE OF LAW IN A TIME OF ECONOMIC AND FINANCIAL CRISIS: THE ROLE OF REGIONAL INTERNATIONAL ORGANIZATIONS IN THE HUNGARIAN AFFAIRE

This article offers a critical analysis of the role played by regional international organizations (IOs) – in particular the Organisation for Security and Cooperation in Europe, the Council of Europe, and the European Union (EU) – in coping with the problems that have been affecting the rule of law in the aftermath of the recent economic and financial crises. The intent is to highlight the main shortcomings of the monitoring/enforcement tools designed by these IOs and to assess whether they require further revision. The specific focus will be on the mechanisms put in place in response to the illiberal practices and constitutional reforms adopted in Hungary from 2011 to 2013. This case is instructive in two respects. In the first place, those legal and political developments have been harshly criticized by all the IOs concerned, and so their response makes it possible to see (i) in what way and to what extent they operate in monitoring and protecting the rule of law, (ii) how well they interact in subiecta materia, and (iii) the strengths and weaknesses of their mandate. And, in the second place, the Hungarian question has made it apparent that violations of the rule of law at the national level can easily take on a systemic, structural and multifaceted dimension that rises to the European level – a problem I will be referring to as the “rule-of-law crisis”. This has prompted an overall rethinking of the way the rule of law needs to be enforced, in a debate that has gained momentum within the EU legal order, very recently leading to a proposal (in March 2014) for a new EU framework through which to strengthen the rule of law. Here, the potential impact of this framework will be considered by also taking into account the alternative solutions offered by scholars and stakeholders.

EU Loyalty After Lisbon: An Expectation Gap to Be Filled?

Conceived as a cornerstone of the European integration process, the Loyalty Clause (today enshrined in Article 4(3) TEU) has been significantly revisited by the Lisbon Treaty. Aside from repositioning the clause, which has wisely been incorporated into the TEU, the Reform Treaty has introduced other innovations to the pre-Lisbon Loyalty Clause, starting from the express recognition, for the very first time in primary law, of the existence of a general principle of loyal cooperation. In light of the pivotal role of EU loyalty and the innovations introduced by the Lisbon Treaty, the question arises as to whether the new formulation of loyalty can serve as a basis on which to effectively deal with the challenges the Union is facing today. This chapter examines the role loyalty can play in this regard, with a view to assessing whether a further revision of loyalty mechanisms is desirable. The analysis is organized as follows. I first consider the mainstream dimension of loyalty. Then I turn to the position of EU institutional actors as concerns their duties of loyalty, focusing in particular on the mutual nature of these duties and their interaction with the imperative to respect national identities, an imperative that today is set out in the same Treaty provision (Article 4 TEU) which contains the Loyalty Clause. With that done, I discuss the interaction and distinction between loyalty and the legal concept of solidarity, the latter often mentioned in the Lisbon Treaty as a structural feature of the EU constitutional dimension, and it has recently entered EU legal discourse on emergencies (natural, economic, financial, and social).

The Acknowledgment of the Direct Effect of EU International Agreements: Does Legal Equality Still Matter?

The founding Treaties of the European Union do not explicitly regulate the legal status or the internal effect of the international agreements concluded by the Union itself. Moreover, the diplomatic practice of the EU legislature has long shown significant resistance to expressly regulating in the text of such agreements the issue of their effectiveness in the legal systems of the respective contracting parties. As a consequence, it is the case law of the European Court of Justice that has tried to shed light on the issue as far as the EU legal order is concerned. In keeping with the common thread of this volume, this chapter carries out an analysis of the ECJ’s rulings on the direct effect of EU agreements through the prism of the EU twin principles of legal equality and non-discrimination, so as to point out the role that direct effect—and the relative ECJ case law—may play in contributing to strengthening the concrete implementation of those principles. Generally speaking, this chapter argues that a Janus-faced attitude towards the principles of equality and non-discrimination comes through in the case law of the ECJ applying the doctrine of direct effect to international agreements. More precisely, the chapter distinguishes two opposite approaches labelled ‘functionalist’ and ‘protective’. The former, it is argued, establishes a functional relationship between direct effect and the equality and non-discrimination principles . From this perspective, the Court’s affirmative finding of a direct effect may be conceived—to some extent—as one of the tools available at the EU level to strengthen a proper implementation of those principles. On the second approach, by contrast, the lack of direct effect of some international agreements entered into by the Union is justified with the need to prevent those principles from being jeopardized and, more generally, to protect EU law. The chapter also looks at the most recent practice of EU political institutions on the signing and conclusion of international agreements. By leading to the express denial of the direct effect of those agreements, that practice marks a significant shift away from the previous trend, a trend that, as mentioned, has so far been characterised by self-restraint of those EU institutions on the agreements’ internal legal effects. This new trend is illustrated in light of the two aforementioned judicial approaches, and its possible consequences on the effective implementation of the equality and non-discrimination principles are weighed.

Il turismo nel trattato di Lisbona: un personaggio non più in cerca di autore

Il contributo, dopo aver ricostruito le tappe piu significative che hanno condotto al riconoscimento del turismo come settore di interesse sovranazionale, illustra le principali novita per il settore turistico, in termini di competenze e strumenti normativi, che conseguono all’entrata in vigore del Trattato di Lisbona. In particolare, esso mette in luce le implicazioni derivanti dal riconoscimento espresso, nel diritto primario, di una politica europea del turismo e ne prospetta i possibili sviluppi alla luce dei primi elementi di prassi delle istituzioni.