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Papers by Vilija Vėlyvytė

European Law Review, 2023

This article advances the EU competence debate by demonstrating that the interpretation by the Co... more This article advances the EU competence debate by demonstrating that the interpretation by the Court of Justice of the free movement rules enshrined in the Treaties is a major, and often dominant, cause of EU competence creep. To that end, the article examines the Court's free movement case law in four sensitive areas of national policy (healthcare, education, collective labour law and gambling) in light of the constitutional principles that govern the scope and exercise of EU competences – conferral, subsidiarity and proportionality. The comparative analysis of the case law allows to identify patterns of judicial reasoning that lead to competence creep in areas that are constitutionally and/or politically sensitive from an EU law point of view. The Court should avoid these patterns of reasoning in order to maintain its legitimacy as a guardian of the rule of law in the EU and, more broadly, preserve the integrity of the EU legal order.

SSRN Electronic Journal

In my contribution, I would like to focus on some of the more contentious issues that Prof. Barna... more In my contribution, I would like to focus on some of the more contentious issues that Prof. Barnard has raised in her paper. My overall goal is to understand what we can expect from the future case law of the Court as regards the protection of social rights in the EU. To that end, I am going to address three main questions: 1. Should there exist a division between civil-political rights, on the one hand, and social and economic rights, on the other? 2. Does such division exist in EU Law, in particular the case law of the CJEU? 3. How might the Court's case law develop in the future? 1. Starting from the first point, is the conceptual division between civil/political rights and socioeconomic rights justifiable?

Viking, Laval and Beyond

The chapter explores the conflict between the positions of the CJEU and the ECtHR concerning the ... more The chapter explores the conflict between the positions of the CJEU and the ECtHR concerning the right to strike in light of the EU’s accession to the European Convention on Human Rights (ECHR), with the aim of assessing how in practice accession will impact the resolution of the conflict and help achieve coherence between the courts. In particular, the analysis seeks to determine how the EU’s duty to comply with the Convention as a matter of international law and the prospect of facing legal liability before the ECtHR in the case of non-compliance could affect the current position of the CJEU concerning the right to strike. The answer to this question largely depends on two factors: the extent to which the Convention and its case law will be transposed by the CJEU into EU law and the extent to which the ECtHR will be willing to review decisions of the CJEU after accession.

Croatian Yearbook of European Law and Policy, Dec 30, 2016

This paper is concerned with the implications of CJEU internal market case law for the balance of... more This paper is concerned with the implications of CJEU internal market case law for the balance of powers between the EU institutions. It argues that the Court's case law involving the areas of domestic policy reserved by the Treaty predominantly for the competence of the Member States creates an inter-institutional dynamic that restrains the rule-making capacity of the EU legislature. This dynamic seems to undermine the EU law principle of institutional balance because it either (i) prevents EU-level legislative action, or (ii) predetermines its content, or (iii) makes it devoid of practical force through expansive judicial interpretation of secondary legislation.

This paper is concerned with the implications of CJEU internal market case law for the balance of... more This paper is concerned with the implications of CJEU internal market case law for the balance of powers between the EU institutions. It argues that the Court's case law involving the areas of domestic policy reserved by the Treaty predominantly for the competence of the Member States creates an inter-institutional dynamic that restrains the rule-making capacity of the EU legislature. This dynamic seems to undermine the EU law principle of institutional balance because it either (i) inhibits EU-level legislative action, or (ii) pre-determines its content, or (iii) makes it devoid of practical force through an expansive judicial interpretation of secondary legislation.

The Chapter explores the normative conflict between the positions of the CJEU and the ECtHR regar... more The Chapter explores the normative conflict between the positions of the CJEU and the ECtHR regarding the status of the right to strike in light of the EU's accession to the ECHR, with the aim of assessing how in practice accession will impact the resolution of the conflict and help achieve coherence between the courts. In particular, the analysis seeks to determine how the EU's duty to comply with the Convention as a matter of international law and the prospect of facing legal liability before the ECtHR in the case of non-compliance could affect the current position of the CJEU concerning the right to strike. The answer to this question largely depends on two factors: the extent to which the Convention and its case law will be transposed by the CJEU into EU law and the extent to which the ECtHR will be willing to review decisions of the CJEU after accession.

The article analyses the conflict between the CJEU and the ECtHR concerning protection of the rig... more The article analyses the conflict between the CJEU and the ECtHR concerning protection of the right to strike in light of the EU's accession to the ECHR. It aims to determine how the CJEU should change its current position to achieve compatibility with the Convention after accession. The two courts seem to have adopted essentially opposite positions with respect to the right to strike. The ECtHR requires that practices restricting the right to strike must be justified and assessed for proportionality in light of the legitimate objectives they pursue. By contrast, the CJEU places the right to strike itself under the proportionality review to assess the lawfulness of its exercise when it interferes with EU economic freedoms. It is submitted that the CJEU needs to strive for a more equitable balance between the right to strike and economic freedoms, similar to how it considers civil and political rights in the context of the internal market.

Books by Vilija Vėlyvytė

Hart Publishing, 2022

This book examines the role of the European Court of Justice in the regulation of the internal ma... more This book examines the role of the European Court of Justice in the regulation of the internal market from a competence perspective. However, rather than focusing on the Court's role in enforcing the limits of EU competence in the EU's political decision making, it explores a related, albeit understudied, question: to what extent does the Court observe the constitutional limits of EU competence and its own institutional powers in the interpretation of EU internal market law laid down in the Treaties? The book provides an answer to this question through the analysis of EU free movement case law in light of the constitutional principles that govern the allocation of competences and powers in the EU: conferral, subsidiarity and proportionality, on the vertical level, and institutional balance, on the horizontal level. Why should the Court be bound by these principles? What do they mean when applied to judicial practice? To what extent are they observed in the free movement case law? The book argues that the Court's observance of the four principles has been inconsistent, thereby creating substantive and constitutional tensions in the EU's relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary.

Conference Presentations by Vilija Vėlyvytė

European Centre of Expertise Conference, 2019

A reply to C Barnard, paper presented at conference The Charter of Fundamental Rights from an EU ... more A reply to C Barnard, paper presented at conference The Charter of Fundamental Rights from an EU Labour Law Perspective, co-organised by the European Commission and European Centre of Expertise (Brussels, May 2019)

Drafts by Vilija Vėlyvytė

ICONs Annual Conference on ‘Identity, Security, Democracy: Challenges for Public Law’ (June 25-27, 2018, Hong Kong), 2018

Paper presented at ICONs Annual Conference on ‘Identity, Security, Democracy: Challenges for Publ... more Paper presented at ICONs Annual Conference on ‘Identity, Security, Democracy: Challenges for Public Law’ (June 25-27, 2018, Hong Kong); Panel on ‘Constitutional Courts, Values, and a Global Canon?’

The paper discusses the challenge of canon construction in European constitutionalism. In that respect, it proposes the canon (or principle) of sincere cooperation as an inclusive constitutional solution that would give recognition to the role of national constitutional orders in shaping the character of European constitutionalism.

European Law Review, 2023

This article advances the EU competence debate by demonstrating that the interpretation by the Co... more This article advances the EU competence debate by demonstrating that the interpretation by the Court of Justice of the free movement rules enshrined in the Treaties is a major, and often dominant, cause of EU competence creep. To that end, the article examines the Court's free movement case law in four sensitive areas of national policy (healthcare, education, collective labour law and gambling) in light of the constitutional principles that govern the scope and exercise of EU competences – conferral, subsidiarity and proportionality. The comparative analysis of the case law allows to identify patterns of judicial reasoning that lead to competence creep in areas that are constitutionally and/or politically sensitive from an EU law point of view. The Court should avoid these patterns of reasoning in order to maintain its legitimacy as a guardian of the rule of law in the EU and, more broadly, preserve the integrity of the EU legal order.

SSRN Electronic Journal

In my contribution, I would like to focus on some of the more contentious issues that Prof. Barna... more In my contribution, I would like to focus on some of the more contentious issues that Prof. Barnard has raised in her paper. My overall goal is to understand what we can expect from the future case law of the Court as regards the protection of social rights in the EU. To that end, I am going to address three main questions: 1. Should there exist a division between civil-political rights, on the one hand, and social and economic rights, on the other? 2. Does such division exist in EU Law, in particular the case law of the CJEU? 3. How might the Court's case law develop in the future? 1. Starting from the first point, is the conceptual division between civil/political rights and socioeconomic rights justifiable?

Viking, Laval and Beyond

The chapter explores the conflict between the positions of the CJEU and the ECtHR concerning the ... more The chapter explores the conflict between the positions of the CJEU and the ECtHR concerning the right to strike in light of the EU’s accession to the European Convention on Human Rights (ECHR), with the aim of assessing how in practice accession will impact the resolution of the conflict and help achieve coherence between the courts. In particular, the analysis seeks to determine how the EU’s duty to comply with the Convention as a matter of international law and the prospect of facing legal liability before the ECtHR in the case of non-compliance could affect the current position of the CJEU concerning the right to strike. The answer to this question largely depends on two factors: the extent to which the Convention and its case law will be transposed by the CJEU into EU law and the extent to which the ECtHR will be willing to review decisions of the CJEU after accession.

Croatian Yearbook of European Law and Policy, Dec 30, 2016

This paper is concerned with the implications of CJEU internal market case law for the balance of... more This paper is concerned with the implications of CJEU internal market case law for the balance of powers between the EU institutions. It argues that the Court's case law involving the areas of domestic policy reserved by the Treaty predominantly for the competence of the Member States creates an inter-institutional dynamic that restrains the rule-making capacity of the EU legislature. This dynamic seems to undermine the EU law principle of institutional balance because it either (i) prevents EU-level legislative action, or (ii) predetermines its content, or (iii) makes it devoid of practical force through expansive judicial interpretation of secondary legislation.

This paper is concerned with the implications of CJEU internal market case law for the balance of... more This paper is concerned with the implications of CJEU internal market case law for the balance of powers between the EU institutions. It argues that the Court's case law involving the areas of domestic policy reserved by the Treaty predominantly for the competence of the Member States creates an inter-institutional dynamic that restrains the rule-making capacity of the EU legislature. This dynamic seems to undermine the EU law principle of institutional balance because it either (i) inhibits EU-level legislative action, or (ii) pre-determines its content, or (iii) makes it devoid of practical force through an expansive judicial interpretation of secondary legislation.

The Chapter explores the normative conflict between the positions of the CJEU and the ECtHR regar... more The Chapter explores the normative conflict between the positions of the CJEU and the ECtHR regarding the status of the right to strike in light of the EU's accession to the ECHR, with the aim of assessing how in practice accession will impact the resolution of the conflict and help achieve coherence between the courts. In particular, the analysis seeks to determine how the EU's duty to comply with the Convention as a matter of international law and the prospect of facing legal liability before the ECtHR in the case of non-compliance could affect the current position of the CJEU concerning the right to strike. The answer to this question largely depends on two factors: the extent to which the Convention and its case law will be transposed by the CJEU into EU law and the extent to which the ECtHR will be willing to review decisions of the CJEU after accession.

The article analyses the conflict between the CJEU and the ECtHR concerning protection of the rig... more The article analyses the conflict between the CJEU and the ECtHR concerning protection of the right to strike in light of the EU's accession to the ECHR. It aims to determine how the CJEU should change its current position to achieve compatibility with the Convention after accession. The two courts seem to have adopted essentially opposite positions with respect to the right to strike. The ECtHR requires that practices restricting the right to strike must be justified and assessed for proportionality in light of the legitimate objectives they pursue. By contrast, the CJEU places the right to strike itself under the proportionality review to assess the lawfulness of its exercise when it interferes with EU economic freedoms. It is submitted that the CJEU needs to strive for a more equitable balance between the right to strike and economic freedoms, similar to how it considers civil and political rights in the context of the internal market.

Hart Publishing, 2022

This book examines the role of the European Court of Justice in the regulation of the internal ma... more This book examines the role of the European Court of Justice in the regulation of the internal market from a competence perspective. However, rather than focusing on the Court's role in enforcing the limits of EU competence in the EU's political decision making, it explores a related, albeit understudied, question: to what extent does the Court observe the constitutional limits of EU competence and its own institutional powers in the interpretation of EU internal market law laid down in the Treaties? The book provides an answer to this question through the analysis of EU free movement case law in light of the constitutional principles that govern the allocation of competences and powers in the EU: conferral, subsidiarity and proportionality, on the vertical level, and institutional balance, on the horizontal level. Why should the Court be bound by these principles? What do they mean when applied to judicial practice? To what extent are they observed in the free movement case law? The book argues that the Court's observance of the four principles has been inconsistent, thereby creating substantive and constitutional tensions in the EU's relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary.

European Centre of Expertise Conference, 2019

A reply to C Barnard, paper presented at conference The Charter of Fundamental Rights from an EU ... more A reply to C Barnard, paper presented at conference The Charter of Fundamental Rights from an EU Labour Law Perspective, co-organised by the European Commission and European Centre of Expertise (Brussels, May 2019)

ICONs Annual Conference on ‘Identity, Security, Democracy: Challenges for Public Law’ (June 25-27, 2018, Hong Kong), 2018

Paper presented at ICONs Annual Conference on ‘Identity, Security, Democracy: Challenges for Publ... more Paper presented at ICONs Annual Conference on ‘Identity, Security, Democracy: Challenges for Public Law’ (June 25-27, 2018, Hong Kong); Panel on ‘Constitutional Courts, Values, and a Global Canon?’

The paper discusses the challenge of canon construction in European constitutionalism. In that respect, it proposes the canon (or principle) of sincere cooperation as an inclusive constitutional solution that would give recognition to the role of national constitutional orders in shaping the character of European constitutionalism.