bluuebunny/crossref_metadata_2025 huggingface dataset:
Dealing withVikingand Laval: From Theory to Practice
Authors: O’Donoghue Robert , Carr Bruce
Published: October 2012

This chapter examines the recent controversial decisions of the ECJ inVikingandLaval, focusing on how they are likely to be applied in practice. Firstly, it considers the rules regarding the applicable forum and the procedures for going to court in the UK, then it looks at when it can be said that an employer’s economic rights under EU law have been engaged and when there has been a ‘restriction’ on those rights. It goes on to address the core issue of the circumstances in which a ‘restriction’ on the relevant EU economic right pursues a ‘legitimate aim’ and then considers the key battleground in future cases falling underVikingandLaval, namely whether the industrial action is ‘proportionate’. Finally, it addresses an important, but unresolved, issue: the extent to which industrial action in breach of Articles 43 or 49 EC could give rise to liability in damages.
The ‘New’ French Constitution and the European Union
Authors: Boyron Sophie
Published: October 2012

For a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
Risk and the European Convention on Human Rights: Towards a New Approach
Authors: Hilson Christopher
Published: October 2012

The aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.
Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850
Authors: Dyson Matthew
Published: October 2012

This chapter explores the relationship between tort law and criminal law. In particular it tracks one line of developments in the procedural co-ordination of criminal and civil law: the ability of criminal courts to award compensation for harm. It is a study of legal change or development: how and why law has evolved from the middle of the nineteenth century through to the present day. The chapter is also comparative, looking at the English and Spanish legal systems. The history of powers to compensate has highlighted two fundamentally different ways to resolve claims based on a concurrently tortious and criminal wrong. The English system has slowly moved from disparate and piecemeal provisions to a general if under-theorised system. On the other hand, Spain created a novel and complete system of liability to be administered by the criminal courts. This chapter seeks to trace and explain this development with a view to understanding how much civil and criminal law can perform the same function: compensation.
The Health of Nations and the Health of Europe
Authors: MacCormick Neil
Published: October 2012

It is an honour to be invited to give this year’s Mackenzie Stuart Lecture. Jack Mackenzie Stuart was a distinguished graduate of this University and of ours in Edinburgh. As a member, and subsequently the President, of the Court of Justice of the European Communities he made a great contribution to the cause of European integration through implementing the laws of the Communities, subsequently the ‘European Union’. As well as performing the ordinary tasks of judging and also latterly of presiding over the Court’s business, he was an apparently tireless publicist for that cause throughout Europe, but most particularly at home in the UK. By seeking to make the work of his Court and the law it administered less mystifying to the ordinary citizen and to the lawyerly public, he made it also less threatening.
Towards an Integrated European Criminal Law
Authors: Delmas-Marty Mireille
Published: October 2012

The creation of an economically integrated Europe, based on free circulation across open borders, has probably facilitated an increase in transnational crime. One response to this phenomenon has been to try to create an integrated European criminal law. But legal integration will not magically solve all the problems related to transnational crime. Indeed, it may create problems of its own. By favouring efficiency (that is, repression) over legitimacy (the protection of fundamental rights), it favours a criminal justice policy oriented towards ‘security’. By imposing the same rules throughout Europe, it disturbs the internal consistency of national legal systems. Nevertheless, the phenomenon of legal integration, facilitated by new legal instruments such as framework decisions, continues to develop. We might therefore ask ourselves, as an introduction, why this is so.
The Meaning of Undertaking within 81 EC
Authors: Odudu Okeoghene
Published: October 2012

Who is bound by the competition rules in the EC Treaty? Article 81 EC applies to agreements and concerted practicesbetween undertakingsand to decisions ofassociations of undertakings; two addressees are specified: (a) undertakings and (b) associations of undertakings. This paper is mainly concerned with the meaning of (a) undertaking. As noted by Advocate General Jacobs, ‘the concept of “undertaking” serves a dual purpose in the system of Article [81]. On the one hand—and this function is more obvious—it makes it possible to determine the categories of actors to which the competition rules apply. . . . On the other hand, it serves to establish the entity to which a certain behaviour is attributable’.
Unifying European Contract Law: Identifying a European Pre-contractual Obligation to Inform
Authors: Giliker Paula
Published: October 2012

The movement towards common principles of European contract law has been described as inevitable. In the words of one of its foremost proponents, ‘it is a historic law that this unification is going to happen sooner or later’. It has been difficult to ignore in recent years the volume of work discussing developments in this area of law. One might note, in particular, the Private Law in European Context series published by Kluwer Law International and the Cambridge University Press Common Core of European Private Law project. Further, the publication of Communications by the EC Commission in 2001, 2003 and 2004 has served to promote an ongoing discussion on the nature and quality of theacquis communautaireand the ‘opportuneness’ of any form of non-sector-specific instrument in the area of European contract law. Such intervention, it has been said, forms ‘the riggings of a ship which is about to set sail’.
Does the Codification of the Principle of Supremacy Matter?
Authors: Cramér Per
Published: October 2012

A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.
English Law and the EuropeanIus Commune1450–1650
Authors: Ibbetson David
Published: October 2012

Sometime around the year 1469, Giovanni Andrea, the Papal Librarian at the Vatican, noted that the Middle Ages were at an end and the modern world had just begun. From his standpoint at the intellectual centre of Christendom, a major transition was occurring.

All across Europe, Law, too, was in a state of transition at this time. We may take as our starting point an early piece of evidence of these changes which comes from the Southern Netherlands. It comes from the small village of St Peters, a village in which legal disputes were decided by local alderman, men who had had no formal legal training but who were very experienced in applying the customary law of the area. An issue had arisen whether a legal right of way had been gained by long use.
Constitutional Developments in Europe
Authors: Amato Giuliano
Published: October 2012

Can we still speak of constitutional developments in Europe after the fall of the document called the ‘European Constitution’ in the French and Dutch referenda? Yes, we definitely can do so, for that document was not the founding act of a European constitutional order; it was a step(undoubtedly a very relevant one) in a process that has been ongoing for more than 40 years.

The European Community was conceived as an international organisation based on the typical source of international law, a treaty among sovereign states. Inside the organisation the representatives of the Member States, namely their Ministers sitting in a common Council (more precisely, in the sectoral formations of it), were empowered to adopt the legally bindings acts of the Community.
Alexandre Kojève’s Hegelianism and the Formation of Europe
Authors: Kletzer Christoph
Published: October 2012

Kojève once wrote in a reply to Leo Strauss that the philosopher who contemplates action faces a conflict that constitutes the only authentic tragedy left in the Christian or bourgeois world:

[T]he tragedy of Hamlet and of Faust. It is a tragic conflict because it is a conflict with no way out, a problem with no possible resolution.

One is inclined to add that the acting philosopher has a notoriously comic side, too, a side that has been exploited throughout the history of literature, from Aristophanes’ ‘The Clouds’ to the modern trope of the moronic impotence of the inept professor. But just as the comic fiction of Aristophanes’ ‘Clouds’ ultimately turned out to have had an actual tragic effect on Socrates’ life and death, so the modern depiction of the helpless philosopher is but a reflex on the troubled relation of philosophy and action.
Private Power and Public Authority in European Union Law
Authors: Chalmers Damian
Published: October 2012

European union law is currently undergoing a transformation as profound as that forged by the ‘1992’ project which prompted the article by Joseph Weiler of that name. If that project was an intensification and broadening of EC law making, this new transformation is altogether of a more subtle nature. On the one hand, there is a commitment to a drastic reduction in the number of EU laws on the statute book. About one third of Union legislation is to be repealed, recast, modified or simplified. Alongside this, one finds an expansion of pan–European norms. In 2003, the main European standardisation body, CEN, adopted 888 standards. This one year’s work equated to more than were adopted in the whole period prior to the end of 1992. One view might be that this is some ‘retreat by the state’. These types of norms are developed by private actors, and maybe a simple privatisation of the legislative process is taking place. This explanation is unconvincing, however. Studies in other fields have found private law making to be accompanied by more pervasive and further reaching forms of administrative intervention.
‘New’ Social Democracy before the Court of Justice
Authors: Boeger Nina
Published: October 2012

Community law has seen some of the fiercest battles over ‘new’ social democracy and ‘Third Way’ politics. To simplify somewhat, the core idea of the Third Way is to rely on the market to provide services to the public efficiently, without however disconnecting them from certain key social values. In the Community legal order, these social policy devices invite the application of the Community’s economic jurisdiction, where public services can be classified as ‘market’ services. They frequently lead to what Joerges has labelled ‘diagonal’ conflicts between the Community’s economic law and its competence to uphold the EU Internal Market, and the Member States’ individual choice, and competence, to administer their welfare states. In ‘diagonal’ conflict situations, a single set of facts is analysed via two different ‘logics’, one following the economic perspective of the Internal Market, and the other marking the Member State’s political and social competence, where states are regularly guided by a more diffuse set of values, including public and constitutional rights, and practical political pressures. Whilst states may well invite the market into their welfare state, for example as part of a political ‘third way’ solution, the national electorate, who will ultimately hold public authorities accountable, are likely to concentrate their judgement on the realisation of substantive public service targets rather than how they have been achieved.
EC Law and International Agreements of the Member States—An Ambivalent Relationship?
Authors: Schütze Robert
Published: October 2012

The European Community (EC) was established in 1957 on the basis of an international treaty. The Treaty of Rome formed part of international law, though the Court of Justice was soon eager to emphasise that the ‘Community constitutes anew legal orderof international law’, and that:

By contrast with ordinary international treaties, the E … C Treaty has created its own legal system which, on the entry into force, became an integral part of the legal systems of the Member States and which their Courts are bound to apply.
Fundamental Rights and the Transformation of Governance in the European Union
Authors: de Schutter Olivier
Published: October 2012

It has been argued in many places, and in different forms, that the establishment between the EU Member States of an internal market, and now of an area of freedom, security and justice, requires the European Union to legislate in the field of fundamental rights, either in order to avoid a form of regulatory competition between the Member States or in order to ensure mutual trust allowing for mutual cooperation between judicial, police and administrative national authorities. ‘Negative integration’, in the form of the lowering of barriers to the movement of goods, services, persons and capital, or in the form of mutual recognition of judicial decisions or exchange of information between national authorities, should thus be followed with, or compensated by, ‘positive integration’, in the form of the setting of common standards applicable throughout the EU Member States. The EU Charter of Fundamental Rights, moreover, provides the baseline from which to act, since it represents a set of values which all the Member States have agreed to consider as fundamental. The question (so it would seem) is now that of implementing the Charter, by using the legal bases provided for in the treaties to the fullest extent possible.
Europol as the Director and Coordinator of the Joint Investigation Teams
Authors: de Lima José Antonio Farah Lopes
Published: October 2012

One of the most serious problems troubling the European Union is the evolution of cross-border crimes and, in particular, international terrorism and organised crime. National law enforcement authorities cannot fight cross-border crimes efficiently if their efforts are made solely on a national level. Since the early 1990s, the (European) political authorities have become increasingly aware of this problem and have taken steps to facilitate the participation of the law enforcement and other relevant personnel from other state(s) in investigating offences. This has resulted in the adoption of a vast number of documents and new instruments (eg the European Arrest Warrant), and the creation of new agencies within the European Union, the aim of which is to facilitate cross-border activities to fight cross-border crimes.
The Impact of Regulatory Competition on Measures to Promote Pluralism and Cultural Diversity in the Audiovisual Sector
Authors: Gibbons Thomas
Published: October 2012

Communications are being transformed by the combination of digital technology and a global media economy. There is increased convergence between traditional broadcasting, cable distribution, satellite broadcasting, telecommunications and the Internet, which has boosted the sheer volume of programming and information that can be conveyed, and extended its reach at both domestic and international levels. Many will see these developments as an opportunity to promote new media products and to rationalise their operations in a global market place. Others may be concerned that the need to compete successfully in that market place will threaten the survival of local and national cultural identity. In terms of policy and regulation, states may be tempted to emphasise trade and industrial policy, intended to improve transnational competitiveness, at the expense of media and cultural policy, aimed at protecting pluralism and diversity.
The Binding Force of Babel: The Enforcement of EC Law Unpublished in the Languages of the New Member States
Authors: Bobek Michal
Published: October 2012

On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA:

From the date of Accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before Accession shall be binding on the new Member States andshall apply in those States under the conditions laid down in those Treaties and in this Act.
The Many Meanings of ‘Competition’ in EC State Aid Law
Authors: de Cecco Francesco
Published: October 2012

In 2001, the Irish carrier Ryanair and the Walloon regional government reached an agreement the terms of which appeared to be attractive for both sides. Ryanair would commit towards operating a number of its flights from Charleroi airport. In return it would receive a 50 per cent reduction in the amount of landing charges charged by the Walloon regional government, the owner of Charleroi airport. As a result, Ryanair would decrease its operating costs and gain an advantage vis-à-vis its competitors, while the airport and its owner would benefit directly and indirectly from the effects of an increase in passenger traffic. When the agreement was examined by the Commission, the Walloon Region sought to defend the measure by arguing that it had acted in its capacity as owner of the airport and that, viewed in this light, the agreement was not an infringement of the state aid rules, but an economically sound transaction. The Commission rejected this point, holding instead that, in entering into the agreement, the regional government had ‘placed itself in a situation ofconfusion of powers’, as the commercial need to attract Ryanair to its jurisdiction had caused it to derogate from the generally applicable regulatory framework. Given that the regional government had exercised a power of a regulatory nature, it could not invoke commercial rationality to justify its actions.
The Problems of Trans-border Evidence and European Initiatives to Resolve Them
Authors: Spencer John R
Published: October 2012

When a criminal case with trans-border ramifications is to be prosecuted within a given state, the following three problems typically arise:

—

bringing the defendant, currently abroad, to that state, to enable the case against him to be tried;

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obtaining relevant evidence from other jurisdictions;

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persuading the courts of the state where the defendant is to be tried that they can use it.

The first of these problems is in principle the most important. Unless a legal system is prepared (as some were in the past) to try defendants in absentia and then punish them in effigy, the defendant’s physical presence within the jurisdiction of the court is usually required in order to bring the mechanism of the criminal law to bear upon him.
European Perspectives on a Judicial Appointments Commission
Authors: Bell John
Published: October 2012

The natural models for English debates on judicial appointments have been from the common law. Although England and Wales remain very much within the common law world and its problems, we are increasingly drawn into a European world, where many of our ideas and standards are shaped by our participation in European agendas. There are important lessons to be learnt from European experience in this area. Based on that European experience, one can see a tension between the desire to give the judiciary greater independence from the executive and the practice of leaving the judiciary increasingly in charge of the processes of appointment and management of the judicial career and, even, of the judicial system itself. These tensions are much stronger in many other parts of Europe and these may serve as useful points of reference. There is an emerging European judicial model to which English debates are now referring, but which needs critical assessment.
The Internet and its Regulation in the European Union
Authors: Savin Andrej
Published: October 2012

The internet belongs to that important group of phenomena that require a fundamental rethinking of law and its ultimate change. The rules made for printed media could not be applied to radio or television when they appeared. Traditional regulatory models for electronic communication arguably cannot be carbon-copied into the Internet world. Like other revolutions brought about by science, the Internet does not lend itself to current regulatory models but requires their rethinking.
The Charter of Fundamental Rights and Beyond
Authors: de la Rochère Jacqueline Dutheil
Published: October 2012

Rounding off a highly innovative process of elaboration, the European Union’s Charter of Fundamental Rights was officially proclaimed by the European Parliament, the Commission and the Council as planned at the Nice Summit, on 7 December 2000. According to the Cologne European Council of 3 and 4 June 1999, ‘it will then have to be considered whether and, if so, how the Charter should be integrated into the treaties’. Indeed, this is one of the points which, under the terms of Declaration 23 annexed to the Nice Treaty, will have to be considered during the ongoing process of institutional reform.
Harmonisation and Cooperation within the Third Pillar—Built in Risks
Authors: Asp Petter
Published: October 2012

During the past nine years, co-operation in criminal matters within the European Union has developed in a rather fascinating way. Before the Maastricht Treaty, which entered into force in 1993, there was not much co-operation in this area at all.

During the time before Maastricht, the focus was on the creation of the internal market, on the rules on competition etc. and criminal law did not fall within the scope of the Treaties. Thus, although Community law had (and has) some implications for national criminal law and despite the fact that some conventions were agreed upon within the European Political Co-operation one cannot really say that criminal law questions were formally on the agenda before Maastricht.
The First Two Years of the Competition Commission Appeal Tribunals
Authors: Jephcott Mark
Published: October 2012

On 1 March 2002, the Competition Commission Appeal Tribunals (‘the Appeal Tribunals’) celebrate the second year of their existence, this being also the second anniversary of the coming into force of the Competition Act 1998 (‘the Act’) which founds their jurisdiction. In fact the Act had existed in dormant form for some time before this date (it was enacted on 9 November 1998), giving competition practitioners and officials alike ample warning of the main provisions of the new regime. However, as the Appeal Tribunals are an appellate body, their opportunity to play their part in the brave new world of competition law had to await the actions of the administrative bodies, and hence the Appeal Tribunals were not called upon to act until fifteen months into their tenure. Nevertheless, once appraised of appeals they have proceeded to produce a number of final and interlocutory judgments which have established the framework and ground rules for an effective judicial forum.
Criminal Jurisdiction, the Public Dimension to ‘Effective Protection’ and the Construction of Community-Citizen Relations
Authors: Baker Estella
Published: October 2012

In a series of decisions the European Court of Justice [‘the Court’] has ruled that Member States must deploy their law enforcement authorities, including their criminal justice systems, so as to safeguard Community interests from threat or damage. These rulings have received attention from commentators because, amongst other things, they make it explicit that Community law has a tangible impact on matters of criminal law and justice notwithstanding the absence of a criminal legal base in the Community Treaty.
The Status of Member States not Participating in the Euro
Authors: O’Keeffe David , Turner Catherine
Published: October 2012

In May 1998, the Council, meeting in the composition of Heads of State or Government, unanimously decided, in accordance with Article 121(2) EC, that eleven Member States fulfilled the necessary conditions to move towards the third and final stage of economic and monetary union (EMU) with the adoption of the single currency on 1 January 1999. This article will discuss the legal position of the Member States which did not initially progress to the third stage of EMU, in particular, the opt-outs exercised by the United Kingdom (UK) and Denmark. There follows an analysis of the extent of the UK and Danish opt-outs and the derogation which exists in relation to Sweden (and previously Greece) together with the role of these Member States in the new institutional framework as in operation from 1 January 1999. The current political discussions on the Euro taking place within the UK and Denmark will be highlighted.
The Elements of a Constitutional Settlement for the European Union
Authors: Dashwood Alan
Published: October 2012

A debate is under way about the future of the European Union. It was started by the Declaration adopted by the European Council of Nice in December 2000, was given more substance by the Declaration of Laeken in December 2001, and received a formal focus in the Convention which has been brought together in Brussels under the chairmanship of former President Giscard d’Estaing. The Nice Declaration referred to, among other things, ‘the simplification of the Treaties with a view to making them clearer and better understood without changing their meaning’, but the Laeken Declaration goes considerably further. There is a section in the Declaration entitled, ‘Towards a constitution for European citizens’, which contemplates possible changes to the structure not only of the Treaties but of the Union itself, including perhaps the abolition of the division into three so-called ‘pillars’, and the distinction between the European Union and the European Communities. The Declaration also raises the matter of the legal status of the Charter of Fundamental Rights which was proclaimed in Nice, and speculates as to the possible adoption ‘in the long run’ of what it calls a ‘constitutional text’. A reordering of the primary instruments of the Union is, therefore, very much on the agenda of the Convention, and the idea has heavyweight political supporters.
Harmony and Dissonance in Free Movement
Authors: Maduro Miguel Poiares
Published: October 2012

There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.
The Introduction of the Euro Banknotes: Some Legal Issues
Authors: de Vicuña Antonio Sáinz
Published: October 2012

This paper addresses two legal issues regarding the euro banknotes, in circulation since zero hours 1 January 2002, the currency of some 300 million Europeans. These are the physical representation of the single currency introduced 1 January 1999. Following the introduction of such banknotes, monetary debts may be discharged in a territory that extends from Faro in Portugal to Rovaniemi in Finland, from the Aran Islands in the Atlantic to the island of Crete in the Aegean. No doubt a major and a historical event for Europe.
Lay Judges
Authors: Bell John
Published: October 2012

The role of lay judges in the legal system is a matter of considerable importance. Lay judges are not only numerous, but they play an especially important part in many branches of law. Yet they are often ignored in general statements on the judicial role or in discussions by professional judges. Concepts like ‘Judicial Independence’ focus almost exclusively on the professional judge and the conditions for her operational effectiveness. The Council of Europe Recommendation on judicial independence recognises that some principles apply to lay judges as well as to professional judges. But the text amounts to a rather grudging recognition.
New Rules of Breach of Contract in Germany
Authors: Ernst Wolfgang
Published: October 2012

In 2001 the German legislator passed a law for the ‘Modernisation of the Law of Obligations’ (Schuldrechtsmodernisierungsgesetz—SMG). It encompassed new rules on breach of contract, a wholly new law of limitation of actions and new provisions for contracts of sale, contracts for services and loan. By the same Act the existing statute on standard contracts (Gesetz über Allgemeine Geschäftsbedingungen) and various other statutes for the protection of consumers were integrated into the German Civil Code (Bürgerliches Gesetzbuch—BGB). It was the most extensive amendment of the BGB since its enactment in 1900. Many of the legislative measures bundled together in the SMG had an EC-law background. We shall here consider only one aspect of the reform statute, namely the new rules on breach of contract and their relationship with European law.
The Draft EU Constitution—First Impressions
Authors: Dashwood Alan
Published: October 2012

The convention on the Future of Europe, which came together in the spring of 2002, completed its work in June 2003. In the event, the various tasks that were set for the Convention by the Laeken Declaration of December 2001 on the Future of the European Union came to be subsumed in the overall task of devising a Constitution for the Union. A sufficient degree of consensus was achieved by the Convention to enable its President, Mr Valery Giscard d’Estaing, to present the outcome of the deliberations of the past 15 months, in the form of a Draft Treaty Establishing a Constitution for Europe, to the European Council of Thessaloniki. So it is through the proposed Constitutional Treaty (referred to hereinafter as ‘the Convention text’) that the specific objectives identified in the Nice and Laeken Declarations, such as those of re-legitimating the Union order and rendering the primary law of the Union more comprehensible to its subjects, now fall to be achieved.
Public Services and European Law: Looking for Boundaries
Authors: Spaventa Eleanor
Published: October 2012

All member states must, as a matter of Community law, provide for a qualified right to go to another Member State to receive treatment at the expense of the competent social security system. According to Article 22 of Regulation 1408/71 such a right is conditional upon prior authorisation by the competent institution. Authorisation cannot be refused when the treatment is amongst the benefits provided for by the State where the individual resides and the treatment cannot be provided within the time ‘normally necessary’ for obtaining the treatment in the State of residence. The Court however has found that Article 49 EC imposes upon Member States obligations that go beyond those contained in the Regulation: thus a prior authorisation requirement constitutes a justified barrier (subject to important qualifications) in the case of hospital treatment and a non-justified barrier in the case of nonhospital treatment. The effects of this interpretation are far-reaching: not only do Member States see their obligations under Community law redefined in a way which might have a significant financial impact on their social security systems; but also the reasoning of the Court could be applied to other branches of the public sector, such as education.
EC Law, UK Public Law and The Human Rights Act 1998: A New Integrative Dynamic?
Authors: Anthony Gordon
Published: October 2012

The process of European legal integration has long been understood to engage the workings of domestic legal orders, EC law and, to a lesser extent, the law of the ECHR. In general terms, the relationship between these bodies of law has been characterised as involving the direct and indirect interchange of principle and practice across jurisdictions. An example of direct interchange is found in the EC law requirement that national courts give effect to rules emanating from the EC legal order in all cases raising EC law issues. The indirect form occurs in disputes which do not raise EC law issues but which see national courts voluntarily borrow from their experience within the EC legal order by way of developing the domestic legal system. Likewise, national courts and the European Court of Justice have relied upon the law of the ECHR, a “foreign” body of rules, in developing their respective legal orders.
EC Transport Law and Policy: A Status Report
Authors: Greaves Rosa
Published: October 2012

Although, in the history of the European Community, the period 1958 to 1985 will not be remembered for remarkable achievement as far as the freedom to provide transport services is concerned, the nineties have redressed the balance, even though a complete Common Transport Policy (CTP) has not yet been achieved. This paper seeks to summarise the current status of the CTP and to focus on two longstanding problems. These problems are the proposals to finance, and then maintain, transport infrastructures and the debate on the Community’s external competence in the field of transport, particularly sea and air transport. However, an appreciation of what has been achieved in the nineties cannot be done without recalling briefly some of the historical background.
Creating the New Europe: The Stability Pact for South-Eastern Europe in the Context of Eu-See Relations
Authors: Cremona Marise
Published: October 2012

“The European Union continues to be strongly committed to the stabilisation and development of South-Eastern Europe. The Union’s strategy is to draw the countries of the region closer to the prospect of European integration.” This confident statement opens the joint Report on EU action in support of the Stability Pact and South-Eastern Europe (SEE) presented by the Finnish Presidency and the European Commission to the European Council at Helsinki in December 1999. It contains three ideas which are key to the EU’s policy towards the region: stabilisation, development and integration. The Stability Pact seeks to provide a framework for the coordination of effort towards these objectives: greater political stability, security and democratisation; economic reconstruction and development; political, economic and legal integration both within the region and between the countries of SEE and the EU.
Joint Competence of the European Community and its Member States and the Dispute Settlement Practice of the World Trade Organization
Authors: Heliskoski Joni
Published: October 2012

One of the principal achievements of the 1994 Agreement establishing the World Trade Organization was the new mechanism for dispute settlement, embodied in the Understanding on Rules and Procedures Governing the Settlement of Disputes. While its predecessor, the General Agreement on Tariffs and Trade of 1947 (and the 1979 Agreements resulting from the Tokyo Round of Multilateral Trade Negotiations) had already evolved, to a considerable degree, from a negotiating forum for the conduct of world trade diplomacy to a “judicial” system properly so called, the WTO Dispute Settlement Understanding nevertheless marked a decisive step forward.
Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order
Authors: Peers Steve
Published: October 2012

It must be considered that there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things. Niccolò Machiavelli, The Prince

It was born, with much rejoicing, at a party near a quiet Luxembourg village; it died, alone and unlamented, on a desk in a non-descript Brussels office. On May 1, 1999, the fourteen-year old Schengen legal order finally breathed its last; but nothing quite became its life as the ending of it. For it was immediately reincarnated, with much confusion, into a legal system born in Rome over forty years ago. Long a byword for obsessive secrecy, unaccountability and complexity, the Schengen legal system has with one stroke moved from the “black market” of European integration into the mainstream.
The Concept of European Union
Authors: Allott Philip
Published: October 2012

We, human beings and human societies, become what we think we are. If we have conflicting ideas of what we are, we become a puzzle to ourselves and to others. If we have no clear idea of what we are, we become what circumstances make us. Conceptual dissonance and conceptual drift have been characteristics of the life-story of the three societies (called European Communities) which are now contained in a society called the European Union. A member of a select but ominous class of international social systems which also includes the Holy Roman Empire and the League of Nations, the European Union is a paradoxical social form, namely, anunimagined community.
Two Types of Regulatory Competition: Competitive Federalism Versus Reflexive Harmonisation. A Law and Economics Perspective on Centros
Authors: Deakin Simon
Published: October 2012

There is a growing debate about the desirability of allowing greater scope for regulatory competition inside the European Union. The argument for doing so is that competition between the Member States in the production of legal rules will lead to greater economic efficiency than can be achieved through the harmonisation of standards. The Court’s ruling in Centros appears to mark a significant move in the direction of inter-state competition in company law. In deciding that a company founded by Danish citizens in the UK, thereby avoiding Danish minimum capital requirements, could not be denied the right to register an overseas branch in Denmark for the purposes of trading there, the Court has rekindled a long-running debate about the siège réel doctrine.
The Corpus Juris Project—has it a future?
Authors: Spencer J. R.
Published: October 2012

My paper on the Corpus Juris project in the first volume of this Yearbook closed by saying, in effect, “Watch this space!” At the end it told how, at the time of writing, the European Parliament and Commission had re-engaged the original team that drafted the proposals, plus some others, and constituted them as a Comité du suivi with instructions to find out how hard or easy it would be to integrate the Corpus scheme into the existing legal systems of the Member States. And it also told how the House of Lords Select Committee on the European Communities had begun to carry out a study of the Corpus project.
The Influence of European Community Law on Public Law in the United Kingdom
Authors: Jacobs Francis G.
Published: October 2012

It is a great privilege for me to give this lecture in honour of Lord Mackenzie-Stuart. I frequently had the privilege of appearing before him as counsel when he was judge at the European Court of Justice and also from 1984 to 1988 when he was President of the Court. It was on his departure from the Court in 1988 that I went to the Court as advocate general.

Lord Mackenzie-Stuart, who has long been interested in the influence of European Community law on public law in the United Kingdom, had recently published a paper entitled “Recent developments in English administrative law—the impact of Europe?” In returning to that theme this evening I should like to update the story of developments in English administrative law where there may be a European impact. I will also venture, perhaps over-ambitiously, to look briefly at the new constitutional reforms, and to see if there may be a European impact there too.
Facing the Digital Future: Public Service Broadcasters and State Aid Law in the European Union
Authors: MacLennan Jacquelyn F.
Published: October 2012

The European Union is faced with many challenges as the new millennium dawns. These range from highly political issues, such as the challenge of enlargement, to highly technical questions arising in areas such as regulation of anti-competitive behaviour. This article will examine one narrow, but topical, issue falling within the ambit of competition policy—how the rules of the EC Treaty on State aid should be applied in the area of broadcasting as it enters the new “Digital Age”.
Human Rights in the Field of Taxation: A View from Sweden
Authors: Persson-Österman Roger
Published: October 2012

Sweden is well known as a high tax society and it is also well known for its spending on welfare. Just over 50 percent of GDP is consumed by taxation. This is an enormous amount of money. How is it possible to avoid strong conflicts between the citizen and the state? Must not this huge appetite for funding tempt the democratic state to pass the borderline and become almost a despotic state? How are human rights protected?
Grant v. South-West Trains: Some Comparative Observations
Authors: Bamforth Nicholas
Published: October 2012

In Grant v. South-West Trains, the European Court of Justice ruled that an employer’s refusal to grant an employee concessionary travel for her samesex partner on the company’s trains—when such a concession was readily available to employees with opposite-sex partners—did not constitute sex discrimination contrary to Article 141 of the EC Treaty. From the standpoint of Community law, the Grant decision has been criticised from a number of angles: for example, it has been suggested that the decision contains an ungenerous approach to the Community law principles of respect for fundamental rights and equality, that it is inconsistent with the Court’s earlier decision in P v. S and Cornwall County Council, and that—given the weight attached by the Court of Justice to European Convention on Human Rights case law—it has been undermined by the later decision of the European Court of Human Rights in Smith v. United Kingdom.
EU Citizens’ Right to Know: The Improbable Adoption of a European Freedom of Information Act
Authors: Öberg Ulf
Published: October 2012

There is without doubt a radical difference between the culture of open government in Sweden and the until recently prevailing culture of secrecy in Britain and within the European Union. From a classic British sceptic’s perspective, “public access to official documents is deemed unnecessary, since British democracy has functioned for so long without it”. The British “have always relied heavily, although not always successfully, on the concept of ‘ministerial responsibility’ to Parliament in order to secure public trust in government”. The mainstream of eighteenth-century British political thought held that the nation’s political well-being required the foundation of an informed gentleman citizenry. By the middle decades of the eighteenth-century, the movement away from the idea of a citizenry composed exclusively of gentlemen was firmly established on both sides of the Atlantic. It became increasingly acknowledged that men of the “meaner sort” should have the right to hold opinions on public affairs and ought to be allowed to protest against governments and laws they deemed improper.
Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act
Authors: Lindell Geoffrey
Published: October 2012

An Act passed by a Parliament may fail to apply to a given set of circumstances for one of two reasons, neither of which is mutually exclusive of the other. The first of those reasons is that the Act falls outside the legislative competence of the Parliament, in which case it is usually said that the Act is unconstitutional or legally invalid. The second is that the Act does not attempt to apply even though the Parliament possessed the competence to make it apply to the same circumstances. The process by which it is determined that the Act does not apply for that reason is one of statutory construction or interpretation. It is possible to describe such an Act as merely non-applicable or non-operative. There will be situations where both reasons may coincide, especially if there is created a statutory presumption in favour of giving an Act a construction, which will ensure its validity. But only the first of the two reasons mentioned above involves a challenge to the supremacy of the Parliament concerned.