Normalizing transnational crises: Between adaptation and transformation of the EU constitutional order

In the middle of the crisis of multilateralism, at the rising of a multipolar world, the EU acts with a new attitude, pursuing a “strategic autonomy“. The EU wants to deal with increasingly frequent crises by a structural response, adapting its legal framework to changing times. “Strategic autonomy“ is not a specific legal tool, but an approach that permeates all the policies of the EU, like CCP and CSDP. It leads to the adoption of new legal instruments, each of them with their own legal complexities and issues. The question is whether the EU legal order allows this effort to adapt. The ECJ asserts the “normative autonomy“ of EU law. Does this legal principle imply the “strategic autonomy“ approach? The paper investigates the interplay of these notions, in the specific field of CCP. Normative autonomy could push for the adoption of instruments implementing the “strategic autonomy“, but, to some extent, the consistency between the two notions of autonomy cannot be taken for granted.

Much of the current debate concerning the future of Europe is animated by the contrast between supporters of a “fiscal Union“ and opponents to any form of “transfer Union“ endangering national financial independence. Over the years, the EU budgetary system has shown itself to be resistant to changes. The forceful response of the EU to the Covid-related economic crisis induced a sudden shift from the State-centered logic of the juste retour toward a truly European budget. NGEU has opened the door for something resembling a form of ‘fiscal solidarity‘ because of the joint borrowing, the new massive financial transfers (grants) to member States as well the design of new own resources. Against this background, the paper explores the new paradigm shift by questioning interpretative stretching and legal acrobatics adopted by the EU Institutions in order to normalize financial solidarity within the EU constitutional framework.

During the international financial crisis, the EU Commission for the first time considered a banking crisis a serious disturbance in the economy of a Member State, normalizing the application of Article 107(3)(b). Afterwards, the EU adopted the SRM regulation and BRRD directive, shaping the Banking Union: as of 1st of January 2016, the SRM and BRRD stipulate that State aid should only be an option of last resort, preferring bail-in instead of bail-out. Moreover, DGS directive provides that DGS may issue alternative measures in order to prevent a bank from failing if the bank has not received extraordinary public financial support. Against this background, the paper analyses if DGS alternative measures could represent a feasible response to a banking crisis. It seeks to identify in both normative and administrative frameworks the new concept of bailing together, according to which the application of DGS alternative measures may be compatible with State aid and Banking Union law.

The EU had long confined the use of conditionality to the external action, whereas the reliance on such policy tool in EU internal governance had been rather limited until the start of the financial crisis. Since then, not only conditionality was the leitmotiv of virtually all financial assistance measures adopted during the crisis, but the discourse of conditionality has been normalised in the management of EU internal expenditure, becoming an essential trait of the financial relations between the EU and the Member States. Against this background, the paper explores how the normalisation of conditionality interacts with the solidarity functions served by the EU budget. To this end, after having traced the rise of conditionality in EU funding policies, the paper sketches out the nature of solidarity conveyed through the EU budget and turns then to the analysis of how the law and practice of conditionality relate with the fulfilment of the solidarity objectives set out in the Treaties.

In last years, ‘fake news‘ have occupied the media law debate, the need for controlling the reliability of the news published on the Web and on social media being raised with increasing urgency. During the Russian crisis, Commission Head von der Leyen expressed the will that Russian editors be banned, which Youtube and others promptly executed. Then, one is led to ask whether her statement marks a turning point in the story of ‘fake news‘. Three points deserve attention. One: the initial formulation of the concept between ontology & convenience, and its (dubious) constitutional consistency. Second: the idea that ‘fake‘ is rather what carries alternative views of crucial controversial events. Third: von der Leyen‘s statement reveals subscription to the ‘fake-partisan‘ equivalence, which denies the irenic Western narrative of a generally accepted ‘truth‘. Conclusively, the concept definitely dismisses its ontology and calls for new consideration in light of supreme constitutional values.

The narrative of crisis usually refers to the pandemic, migration policy, Brexit, economic governance and even – as we recently came to discover - security and defense policy. However, although not perhaps at the same level of importance, it was also believed that the technological innovations would have hampered the stability of legal orders, be that the national or the EU one, thus creating a crisis within the legal framework. However, after a first phase of high ventured alarmism, we are now seeing that the ratio problems v opportunities, in the dialogue between law and technology, is highly unbalanced towards the opportunities. In this paper I will present how a very specific kind of disruptive technology, blockchain, is, rather than being outlawed or even persecuted, incentivized and regulated by the EU legislator as a possible vehicle for innovation, from crypto assets to digital identity and financial products as well as to the possibility to create an EU proprietary blockchain