European Union

The institutional system and decision-making procedures of the EU are based on role splitting (Georges Scelles’ dédoublement fonctionnel) by political holders of executive power and their administrations in the member states, who act as organs of the state and, at the same time, of the EU. The Union embodies a form of executive federalism similar to that of Germany, with all the problems of an interlocked political system (Politkverflechtung) e.g., the so-called joint decision trap (Fritz W. Scharpf’s Politkverflechtungsfalle). The development of European integration has strengthened member states’ executives at the expense of parliaments, and central executives in relation to local and regional authorities. However, this strengthening has been accompanied by a blurring of the lines of accountability.

The EU added a dimension of overriding legality to our constitution that was judicially determined and made by an edifice constructed by law. When the lessons of Van Gend en Loos and Costa v ENEL were learned there were profound effects: not only was legislation disapplied which contravened directly enforceable EU law but injunctions could issue against a minister standing in the shoes of the Queen as an officer of the Crown when contravening EU law. Leaving the EU involved a major change in our constitution. The EU (Withdrawal) Act 2018 (EUWA) (and now see 2020 EU Withdrawal Agreement Act) was passed to ensure a smooth transition for the UK’s legal system after Brexit. This meant that all EU law (except the Charter of Fundamental Rights), together with pre-Brexit principles of interpretation of EU law (known as “general principles of law”) and the pre-Brexit case law of the Court of Justice, was converted into UK law on 31 December 2020 as “retained EU Law” (REUL). The Government intends both to prioritise reform of retained EU law in areas that will deliver “the greatest economic gain” and to give Parliament the power to define in a more precise way the relationship between retained EU law and UK law. The scope to wander from EU norms will be confined by economic and commercial realities. A pressing constitutional priority will be the challenge to Parliament to keep under scrutiny the vast delegation of legislative powers to the executive that Brexit has brought about.

This contribution analyses two different approaches in responding to the pandemic emergency. The author focuses on the 'Pandemic Law' adopted by Belgium to ensure a comprehensive legal framework for administrative action against the pandemic. He then analyses the creation of a new administrative authority within the European Union.

The advent of Uber distorts traditional legal categories and requires a rethinking of the paradigms of public intervention in the economy. This contribution analyses and compares the regulatory interventions of the Uber phenomenon, through a comparative reading of US and European systems. This contribution considers the broader regulatory perspective of the 'sharing economy' category which operates in highly regulated sectors and is often dominated by operators inspired by strong corporate values.

As part of CERIDAP's "Book Forum" initiative, a study meeting to present the book "L’intervento pubblico di contrasto della povertà"(Editoriale Scientifica, Naples, 2021), written by Prof. Claudio Franchini, was held on 27th of January 2022. The contribution aims to review the interventions of the meeting.

This essay deals with the impact of new technologies in the provision of public service. The analysis focuses specifically on urban mobility, stressing out the new mobility concept that technologies has brought and its compatibility with public service principles.

Trade globalisation, digitization, the circulation of vast amounts of taxable wealth, and the ease with which elusive practices aimed at diverting taxable material can be implemented today, have greatly affected the rigid legal-tax definitions that, even today, attempt to harness these new forms of highly mobile wealth. In fact, not only do digital enterprises to avoid being rooted in a specific territory take advantage of pre-existing definitions and institutions, created to tax income earned by the so-called traditional economy; but, above all, by using new digital-tools, they directly manage to hide many segments of their activity. In this paper, after a quick review of the history of the digital economy, we will try to offer a hypothetical solution to the still controversial issue of how to tax these highly mobile incomes.

The paper analyzes the recent jurisprudence about prospective overruling on national administrative measures governed by EU law (Council of State judgment nos 17 e 18/2021) to test its compliance with ECJ’s jurisprudence. Indeed, it’s in the Court of Justice’s exclusive jurisdiction to determine if a declared violation of UE law may be tolerated for the time necessary to avoid the infringement of a legitimate expectation. So sentences of national judge about prospective overruling concerning EU law are ultra vires.

The analysis stems from the judgment n. 17 (and its “twin” n. 18) of the Plenary Assembly of the Council of State concerning the future of state-owned maritime concessions used for touristic and recreational purposes. Starting from the confirmation of the illegitimacy of the automatic extension, as contrary to both Article 49 TFEU and Article 12 of the Services Directive, the key focus of attention is on highlighting how the administrative judges define the cross-border interest of state concessions as necessarily existing and not to be established because of the context. This implies a reflection on the future activity of public administrations called to set up the procedures for the award of expiring concessions, according to the forthcoming indications of the legislator. The judgment itself attempts to create the law: not only does it postpone the effects until the end of 2023, but it offers the legislator clear and established criteria for the reform of the sector.

With Regulation (EU) 2021/953, a common framework for an EU Digital COVID certificate was established to facilitate free movement between member States during the current pandemic, guaranteeing minimum health safety conditions. The new mechanism testifies (among other things) to a process that has been underway for some years, in relation to which administrative cooperation, as an instrument for governing the single market and a driving force for European integration, can only be based on the use of new technologies, which now constitute an essential element.