REUL/Assimilated Law: the Current Rules(?): CELS Lunchtime Seminar

Speaker: Dr Raphaële Xenidis, Sciences Po Law School, FranceAbstract: EU anti-discrimination law has been a subject of choice for critiques from various disciplines. One influential motif that has durably structured the critical analysis of EU anti-discrimination law is the distinction between formal and substantive equality. Substantive approaches seek to diagnose and remedy the disjunctions between formal equality frameworks and social realities. Yet, such critiques often remain implicit in their engagement with social theory, leaving the very notion and construction of ’social realities’ largely unexamined. This paper thus asks: How does the principle of non-discrimination mediate and produce specific forms of individual subjectivity, interpersonal relationships, institutional arrangements, material and spatial organisation and ultimately social order? How does it authorise the existence of certain subjects and groups while excluding and rendering others invisible? What 'forms of life' does EU anti-discrimination and its jurisprudential construction by the Court enable or preclude?For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speaker: Dr Julian Ghosh, Cambridge University Abstract: In this seminar Dr Ghosh will address what, post-Lipton are the rules for REUL/AL; examples of UK Court decisions which should but do not apply REUL/AL and will provide a useful template for future litigation.For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

An online debate considering the recent Supreme Court case of 'For Women Scotland Ltd v The Scottish Ministers' which was handed down on 16 April featuring Aidan O’Neill KC (Scot.), KC (E&W), BL (Ireland) who appeared for For Women Scotland. In the discussion Aidan reflected on his experiences of the case, the judgment and participate in a debate of the issues it raises going forward. This was followed by a response from Dr Lena Holzer, and then a question and answer session.For more information see: https://www.cels.law.cam.ac.uk/activities-archive

Speaker: Dr Bernadette Zelger, University of InnsbruckAbstract: The debate about the future of the European Union has long left academic circles, arrived in the midst of society and been awarded political attention. Meanwhile, there has been an increase of Euroscepticism accompanied by more nationalist political developments echoed in the swings to the right all across the EU. These developments may, arguably at least in parts, be explained by social resentments of the peoples of Europe. While acknowledging that law constructs and contributes to a social reality of its own it is thus, arguably also about the lack of a genuine socio-economic equilibrium within the law and political system of the EU. This imbalance is not only found within the EU legal constitutional framework, but also within the case-law of the European Court of Justice. However, possible solutions to solve this socio-economic imbalance are limited: It is either (i) Treaty reform or, alternatively, (ii) a change in the approach of the Court in its jurisprudence. While these alternatives are both valid and, to some extent, mutually exclusive, they unveil and epitomise different visions as regards the future of the European Union. However, while acknowledging the differences in the approach, they are arguably different means to serve the very same end: Warrant the European Union’s future success. For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speaker: Professor Orla Lynskey, University College London Abstract: The EU ‘digital empire’ seeks to align technological development to its rights and values by adopting and promoting a rights-driven model of technological regulation. Bradford’s influential characterisation of EU digital strategy is credible when one maps the array of legal ‘Acts’ applicable to data, digital markets, digital services and AI adopted by the EU in recent years, all of which are without prejudice to the EU data protection law. Yet, when one delves deeper, the EU’s commitment to rights-based regulation of the digital sphere is not iron-clad. Rather, as we demonstrate through an empirical analysis of the European Commission’s adequacy decisions over a quarter of a century (1999-2024), there are clear divergences amongst EU institutions about the balance to be struck between fundamental rights and economic interests. Such divergence suggest the EU might more accurately be characterised as an amalgamation of fiefdoms rather than an empire. This inter-institutional dynamic is relevant to the legitimacy of EU actions in the digital sphere and may foreshadow the future direction of EU data law.For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speaker: Dr Andriani Kalintiri, King’s College LondonAbstract: Is EU antitrust law resilient in the face of change? This question has acquired prominence amidst the many crises and disruptions of recent times, such as the COVID-19 pandemic, climate change and digitalisation. Attempts to answer it though have been rather narrow in scope and tend to employ the language of resilience casually. This article contributes to knowledge (a) by developing a conceptual framework for understanding and assessing legal resilience in administrative enforcement systems and (b) by applying it to Articles 101 and 102 TFEU with a view to investigating its ability to respond to change in a systematic manner. The analysis reveals that the current regime exhibits several design features that enable decisionmakers to make resilience choices as needed, and the resilience choices that have been made on various occasions are prima facie justifiable given the nature of the problem the European Commission and/or the EU Courts were faced with. However, certain aspects of the existing legal framework may weaken or limit EU antitrust law’s ability to deal with certain problems, in particular (very) complex ones, whereas some of the resilience choices that have been made have had implications for legal certainty, coherence and legitimacy that may not have been sufficiently appreciated so far. The article highlights the added value of a legal resilience perspective for effectively using EU antitrust law as a tool for tackling problems in an ever-changing world and demonstrates that, albeit not a panacea, such a perspective may reinforce the quality of enforcement and public’s trust in it.3CL runs the 3CL Travers Smith Lunchtime Seminar Series, featuring leading academics from the Faculty, and high-profile practitioners: https://www.3cl.law.cam.ac.uk/centre-activitiesFor more information about CELS see: https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speaker: Professor Barend van Leeuwen, Durham UniversityAbstract: What do we mean when we talk about the "horizontal direct effect" of the free movement provisions? You would think that, after decades of case law on the free movement provisions, the meaning of this concept should be relatively clear and crystallised. However, there is still a significant amount of disagreement about the very meaning of the concept of "horizontal direct effect". While some EU lawyers speak of horizontal direct effect when the free movement provisions are applied in a dispute between private parties (a procedural approach), other EU lawyers will only refer to horizontal direct effect when the rule or conduct that is being challenged is of a private nature (a substantive approach). This paper will analyse these different interpretations of the concept of horizontal direct effect through the lens of the "Familiapress dilemma". It will be argued that a distinction should be made between horizontal direct effect cases (in which private rules or actions are challenged in a dispute between private parties) and horizontal enforcement cases (in which State rules or actions are challenged in a dispute between private parties). The problem with a procedural approach to horizontal direct effect is that no connection is made between direct effect and the question of who is held responsible (and liable) for breaches of the free movement provisions. This makes it more difficult to provide effective judicial protection to victims of breaches of free movement law, because it is unclear who should ultimately "pay the bill". Against this background, it will be argued that the CJEU should develop more explicit techniques or "formulas" to allocate responsibility in free movement cases. In parallel, the CJEU should improve the effectiveness of the remedies of State liability and private liability for breaches of the free movement provisions.For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speakers: Professor Eleanor Sharpston KC, Advocate General, CJEU (2006-2020) and Goodhart Professor, University of Cambridge (2023/2024) and Dr Markus W. Gehring, Associate Professor, Faculty of Law and Member of CELS. Abstract: On 18 September 2023 the Group of 12 Experts from both France and Germany released their proposal ‘Sailing on High Seas: Reforming and Enlarging the EU for the 21st Century’. The Group make two proposals on the Rule of Law and five further proposals for institutional reform. Overall, the Group had three objectives to increase the EU’s capacity to act, to get the institutions ready for enlargement and strengthen democratic legitimacy and rule of law. This resulted in a series of proposals for inter alia treaty change. The proposals are all on a continuum but largely aim for reform rather than a recreation of the European Union. They align with other reform proposals and at times take up proposals that were made for EU reform in the past or indeed discussed during the EU Constitutional convention process in the early 2000s. The objective here was clearly reformation rather than revolution. This conversation discusses some of the individual reform proposals in the context of the practice of the Court of Justice – could these proposal mean the beginning of 'Europe’s Second Constitution'?For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speaker: Professor Eleanor Sharpston KC, Advocate General, CJEU (2006-2020) and Goodhart Professor, University of Cambridge (2023/2024)Abstract: As an AG Professor Sharpston worked on religious discrimination and employment matters, delivering an opinion in one of the first two hijab cases (Bougnaoui) and then the ‘shadow opinion’ in Wabe and Müller, which she posted via Professor Steve Peers’ EU law blog after leaving the Court. She has already compared Achbita and Bougnaoui to the decisions in Egenberger and the Caritas hospital case (IR v JQ) in her festschrift contribution for Allan Rosas. Unsurprisingly, she has been keeping an eye open for further developments in that case law (WABE and Müller, S.C.R.L (Religious clothing) and, most recently, Commune d’Ans (Grand Chamber, 28 November 2023). Additionally, she has also been looking at what the Court has been saying in relation to ritual slaughter of animals (as required for meat-eating observant Jews and Muslims). Notable cases include Liga van Moskeeën, Oeuvre d’assistance aux bêtes d’abattoirs (OABA) and Centraal Israëlitisch Constistorie. The case law of the European Court of Human Rights also addresses these issues: Eweida v UK on religious symbols in the workplace, and the very recent decision (13 February 2024) in Executief van de Moslims van België and Others v Belgium on banning ritual slaughter of animals without prior stunning. The cases are constitutionally important in terms of the deference shown to Member States; and in some respects, they are troubling for anyone who is religious and non-Christian.Discussion chaired by Dr Markus W. Gehring, Associate Professor, Faculty of Law and Member of CELS.For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series

Speaker: José Barroso, former President of the European CommissionBiography: José Manuel Durão Barroso served twelve years in the Government of Portugal including as Prime Minister and Minister of Foreign Affairs Minister. He was President of the European Commission during two mandates (2004/2014).His academic appointments include visiting professor at Georgetown University and visiting professor at Princeton University. He is currently a visiting professor at the Catholic University of Portugal and at the European University Institute, School of Transnational Governance, Florence. José Manuel Barroso studied Law (University of Lisbon) Political Science and International Affairs (University of Geneva).He is currently Chair of the Board of Gavi, the Vaccine Alliance, and Chairman of International Advisors, Goldman Sachs.For more information see:https://www.cels.law.cam.ac.uk/weekly-seminar-series