Ball in the Commission’s Court: Ensuring the Effectiveness of EU Law the Day After the Court Ruled

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Table of Contents: I. Introduction. – II. Overturning democracy in the name of the law: the use of creative compliance by EU autocratic legalists. – III. Setting the context: the Court’s ruling in Transparency of Associations. – III.1. The 2017 Transparency Law. – III.2. The Court is in session! – IV. (Almost) New actors, same old story:...

Convention Control Over the Application of Union Law by National Judges: The Case for a Wholistic Approach to Fundamental Rights

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Table of Contents: I. Convention control over the application of Union law by domestic courts. – I.1 The principle. – I.2. Applications. – II. The case for a wholistic approach to fundamental rights: state of the play. – II.1. The European Court of Human Rights. – II.2. The Court of Justice of the European Union. – III. Conclusion....

Preface: Rewriting Landmark Judgments of the European Court of Justice: A New Project for European Papers and a New Way of ‘Doing EU Law’

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Abstract: This preface to the new series What ... Should Have Said: Rewriting Landmark Judgments of the European Court of Justice introduces the project and its rationale. Legal scholars typically critically analyse court judgments so as to provide a "soft power based" check on judicial reasoning and provide doctrinal and normative guidance...

Introduction: What Keck and Mithouard Actually Said – And Its Legacy

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Abstract: The European Court of Justice's judgment in Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) is one of the crucial judgments in the development of the free movement of goods, and EU internal market law more generally. Keck generated a vast number of scholarly commentaries. Its legacy has...

What Keck and Mithouard Should Have Said: Preventing Substantial Barriers to Market Access

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Abstract: This rewriting of Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) is based on three categories of measures having equivalent effect: 1) national measures which disadvantage imported goods, 2) product requirements and 3) indistinctly applicable measures capable of...

What Keck and Mithouard Should Have Said: Same Same, but Different

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Abstract: This rewriting of Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) aims to retain the "spirit" of Keck without resorting to categorising national measures into "product requirements" and "certain selling arrangements". The judgment is informed by Senn and Nussbaum’s capability...

What Keck and Mithouard Should Have Said: It Could Have Been so Simple

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Abstract: This rewriting of Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) maintains the basic underlying philosophy of the Keck judgment but dispenses with the terminology of ‘certain selling arrangements’. Enchelmaier’s judgment squarely overturns the Sunday trading case law...

What Keck and Mithouard Should Have Said: ‘Steady as She Goes, Left Hand down a Bit?’

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Abstract: This rewriting of Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) unequivocally states that the French prohibition on sale at a loss is a measure having equivalent effect, and relies to this effect on the Oosthoek line of case law. Gormley's judgment aims to closely follow...

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