This chapter examines the choice of legal basis in EU external relations post-Lisbon in the light of the judgment of the Court of Justice in the Legal Basis for Restrictive Measures case. Before reaching the conclusion that the regulation at issue there was rightly based on Article 215(2) of the Treaty on the Functioning of the European Union (TFEU) and rejecting the European Parliament’s argument that the measure ought to have been taken on the basis of Article 75 TFEU, the Court made a number of important observations on the principles to be followed when choosing a legal basis and recalled some of its earlier case law, in particular Titanium Dioxide and its progeny. This chapter reflects upon the application of those principles in a post-Lisbon framework.

Choice of legal basis in EU external action – Conclusion of international agreements – Application of the centre of gravity test – Delimitation of the Common Commercial Policy, the Common Foreign and Security Policy and Development Cooperation Policy – Institutional balance

Comparing the EU law principle of loyalty with international law good faith and the duty of federal good faith in German constitutional law (Bundestreue), this article contributes to the discussion on the nature of the EU legal order and its relationship to international law more generally by finding that EU loyalty is in essence a specific incarnation of the international law principle that treaties are to be interpreted in good faith. At the same time, it challenges the assumption that international law good faith differs fundamentally from federal good faith. To this end, the article points at historical links between both, and posits that good faith is in essence a principle of constructive interpretation, the strictures of which increase with the level of integration of the legal order in which it is applied.

DOES EU law entitle a woman who had her genetic child through surrogacy to paid leave of absence from employment equivalent to maternity leave or adoption leave? That is, in essence, the issue the Court of Justice of the European Union (CJEU) was faced with in Z, C-363/12, EU:C:2014:159 (“Z”), a reference for a preliminary ruling from the Equality Tribunal (Ireland), and in C.D., C-167/12, EU:C:2014:169 (“C.D.”), a reference from the Employment Tribunal, Newcastle upon Tyne (UK). The Opinions in the two cases (by A.G. Wahl, EU:C:2013:604 and A.G. Kokott, EU:C:2013:600, respectively), while reaching opposite conclusions, were both delivered on 26 September 2013, giving the Court the benefit of two well-reasoned analyses on which it could base its deliberations. The judgments of the Grand Chamber, which essentially followed the Opinion of A.G. Wahl, were delivered on 18 March 2014. This note focuses on Z, while referring to C.D. when appropriate.