The requirements of free trade and economic globalisation and the respective international legal framework, namely in the context of the WTO, have led to a decrease of the regulatory power of the nation states which cannot be replaced by comparable public international law making – neither in content nor with respect to legitimacy considerations.

On 22 January 2014, the Grand Chamber of the Court of Justice confirmed the validity of the powers entrusted to the European Securities Markets Agency under Article 28 of Regulation (EU) No 236/2012, upholding their compatibility with the principle of institutional balance, the Lisbon Treaty and established case law of the CJEU.

This case note gives an overview of the ruling and analyses its implications for ESMA and the broader Union institutional setting, with particular regard to the interplay between EU Institutions and agencies. It concludes by highlighting some reasons for potential constitutional concerns resulting from the combination of politically unchecked agencies and highly controlled Institutions.

Notwithstanding impressive gains in occupational safety across the Australian coal mining sector, this research reveals that even within the same company, some mines substantially outperform others in terms of safety outcomes, raising questions as to why, notwithstanding the introduction of sophisticated and systemic risk management mandated by government, such variation still exists. Potential contributory variables are considered (technology, physical environment, management systems), and discarded, before examining the role of safety culture. Drawing on qualitative (interviews) and quantitative research (safety statistics and audit results) it was found that distinctive patterns of site and context specific cultural factors align to safety performance. The article provides insights as to whether, to what extent or in what circumstances site specific cultural variables, served to undermine or reinforce the effectiveness of the company's overall risk management strategy.

“[M]any observers agree that the Commission has been ‘leaking like a sieve’”.

Leaks have become a major element of European Union politics. The Transatlantic Trade and Investment Partnership (TTIP) leak in early May 2016 is neither the first of its kind nor will it be the last. Transparency by leaks – or “transleakancy” as the series of publications of confidential TTIP negotiation documents has already been coined – is one element of the political game that different interest groups, governmental and non–governmental, play on both sides of the Atlantic. And yet, leaked EU documents have been shared in wider policy-networks all along, independent of whether they have received media attention or not. The difference is that leaks similar to those that we see on TTIP have reached a new level of importance. Here, themere fact of their existence makes them newsworthy. The impact of these leaks on public debates is seen as amajor risk for negotiators.

On 13 August 2013, the Government of Indonesia requested a special meeting of the WTO Dispute Settlement Body (hereinafter, DSB) in order to obtain authorisation to suspend concessions or other obligations (i.e., to ‘retaliate’) against the United States (hereinafter, the US). This request stems from the US alleged failure to comply with the rulings and recommendations of the WTO DSB in the dispute US – Measures Affecting the Production and Sale of Clove Cigarettes (hereinafter, US – Clove Cigarettes). In that dispute, the WTO dispute settlement organs found that Section 907(a)(1)(A) of the Federal Food, Drug, and Cosmetic Act (hereinafter, the FFDCA), introduced by Section 101(b) of the Family Smoking Prevention and Tobacco Control Act discriminated against Indonesian clove cigarettes in favour of ‘like’ domestic menthol cigarettes, in a manner which was inconsistent with, inter alia, Article 2.1 of the WTO Agreement on Technical Barriers to Trade (hereinafter, TBT Agreement). The DSB recommended that the US bring its legislation relating to the ban on flavoured cigarettes into conformity with its obligations under the WTO. On 22 August 2013, the US objected to the level of suspension of concessions proposed by Indonesia and requested that the matter be referred to arbitration. Following such request from the US, the DSB agreed that the matter be referred to arbitration and informed WTO Members that arbitration would be carried out by the original panel.

In recent years the concepts of ‘nudge’ and ‘libertarian paternalism’ have become popular theoretical as well as practical concepts inside as well as outside academia. But in spite of the widespread interest, confusion reigns as to what exactly is to be regarded as a nudge and how the underlying approach to behaviour change relates to libertarian paternalism. This article sets out to improve the clarity and value of the definition of nudge by reconciling it with its theoretical foundations in behavioural economics. In doing so it not only explicates the relationship between nudges and libertarian paternalism, but also clarifies how nudges relate to incentives and information, and may even be consistent with the removal of certain types of choices. In the end we are left with a revised definition of the concept of nudge that allows for consistently categorising behaviour change interventions as such and that places them relative to libertarian paternalism.

The case discusses the “Test-Achats” judgment of the ECJ in the overall context of the EU-non-discrimination principle in relations traditionally governed by private law and party autonomy. This principle has come from employment law and has been extended to consumption matters, at least with regard to such incriminated characteristics as gender, ethnic origin, and nationality. Even if the consequences of the ECJ judgment on the insurance market, including protection of insured persons themselves, by imposing “unisex”-tariffs from 21.12.2012 on may be viewed critically, the Court only draws the legal consequences of a prior decision of the EU legislator which cannot be delayed for an indefinite time span by the Member States (author's headnote).

On 18 February 2016, the European Ombudsman delivered a decision (case 12/2013/MDC) that has the potential to thoroughly shake up the manner in which the European Commission authorises plant protection products (PPPs).Pesticide Action Network Europe (PAN-Europe) brought the case before the Ombudsman. It alleged that the Commission approves potentially unsafe PPPs and disregards data gaps in the risk assessment, thereby ignoring concerns raised by the European Food and Safety Authority. PAN-Europe also argued that the Commission fails to set appropriate risk mitigation measures and to check Member States’ compliance with those measures. The Ombudsman largely agreed with PAN-Europe. She found that the Commission indeed authorised substances, even when it was unclear whether a substance met the legal health and environmental safety requirements. The Ombudsman made several recommendations to the Commission for bringing its approval practice, which constitutes maladministration, in conformity with EU pesticide law.

Co-regulation presents an odd paradox in today's context of a shifting emphasis from government to governance. In the first place, co-regulation implies horizontal, ‘networked’ relations between government and industry. Yet at the same time, it has the hierarchical connotation inherent in regulation. The main concern addressed in this paper is what this ambiguity means for evaluations of co-regulation. What is failure here? Two contrasting interpretations of ‘governance’ are described, and a case study from the Dutch poultry sector is presented to seek explanations for failure. The two interpretations are found to provide complementary explanations for failure. This suggests that evaluations adopting a single perspective may produce all-too-easy – though misleading – conclusions.

This paper focuses on those parts of the regulatory environment that are designed to encourage scientific and technological innovation. Patent law is the obvious example; but tax law can also signal encouragement for particular activities. The key question is whether regulators will, or should, withhold tax incentives where there are some, but not universal, moral reservations about an innovation. In order to earth this question, three recent cases at the ECJ, two involving the controversial practice of cord-blood banking, are examined. Insofar as these cases offer any evidence of the prevailing regulatory approach, it seems to be similar to that found in patent law – that is, moral reservations do not count against the applicability of a tax exemption so long as they are not universally recognised.

Cars will become more autonomous and intelligent in the near future. Eventually, Autonomous Intelligent Cars (AICs) will contribute to road safety, will enable the mobilisation of disabled citizens and a will lead to a decrease of CO2 emissions. The European Union aims to stimulate responsible innovation in the field of AICs, in a way that (ethical) acceptability, sustainability and societal desirability are taken into account. The current legal frameworks are not observed to optimally facilitate innovation or successful societal deployment of AICs. This article explores challenges for both innovation and acceptance that follow from the current legal regimes on product liability, liability for motor vehicles and information privacy of consumers of AICs, and discusses these challenges in view of a regulatory balance that is to be reached between stimulation of innovation and consumer protection in the European Union.