bluuebunny/crossref_metadata_2025 huggingface dataset:
Work-Time Reduction in France: The Role of Collective Bargaining in Implementing the Law
Authors: Auvergnon Philippe
Published: April 2022

Historically, the labour law applicable in most European countries relates closely to the objective of limiting the amount of time worked each day for specific groups such as children and women. However, we have progressed a great deal since the 19th century. Although there have been differences in the approach adopted by each country, since the Second World War there has been a common trend, with the exception of some non-democratic southern European countries, towards work-time regulation. Over the last ‘thirty golden years’, characterised by high levels of economic growth, the law (when it has intervened) has set maximum thresholds. These legal provisions have been improved upon by collective agreements which have reduced working hours and increased the amount of paid holiday.
Older and Greyer — Third Age Workers and the Labour Market
Authors: Desmond Helen J.
Published: April 2022

At a time when increases in health and longevity indicate that workers are physically able to remain in employment for longer than their predecessors, the reverse has been the case. As a result of recession and redundancy, early retirement has become an accepted route to exit the labour market, and early exit has been encouraged in many countries as a means of alleviating youth unemployment. However, an approaching ‘demographic time-bomb’, which will put pressure on support ratios and social welfare costs, is stimulating the introduction of national and Community level initiatives to reverse the trend in early exit.
Positive Action before the European Court of Justice — New Conceptions of Equality in Community Law? From Kalanke and Marschall to Badeck
Authors: Schiek Dagmar
Published: April 2022

The ECJ's judgement in Badeck is the third on the admissibility of positive action measures under Community Law. The measures, at issue in all three cases, instituted positive action to combat gender discrimination in public employment in Germany. In the near future, the Court will rule on a claim instituted against a positive action measure used in Swedish Universities (Case C-407/98, Abrahamsson and others). Thus, this debate will soon lose its Germanic taste. This comment analyses the new decision and discusses the conception of equality which might be inferred from all the judgements.
The Debate over a `European Constitution': Is it Solely a German Concern?
Authors: Jacobi Philipp , Dorau Christoph
Published: April 2022

Recently in Germany a lively discussion has arisen about the question of the necessity for and the contents of a Constitution of the European Union. In its first part, this article will focus on the different arguments and positions taken in the German debate. The opponents of such a constitution have in particular argued that this debate is purely a German one. The second part of the article will prove the contrary. It will be shown that, on the European level, the question is openly discussed and the drawing up of an EU Charter of Fundamental Rights marks the tendency towards a constitutional contract in the sense of an original Constitutional Charter for the EU.
The Holidays With Pay Convention of the ILO (No. 132): A Commentary
Authors: Blanpain Roger
Published: April 2022

This article is the result of an apparent stalemate between member States, as well as employers' and workers' representatives regarding the appropriate action to take with respect to the Holidays with Pay Convention (revised) 1970, No. 132. The Convention has been examined in the context of the Working Party on Policy regarding Revision of Standards which had requested the International Labour Office to undertake an inquiry regarding the possible obstacles to and difficulties in ratification. The status questionis indicates a need for a further analysis of the trends and developments which might affect the ratification level of the Convention, in order to clarify its prospects for further ratification, and to identify the main obstacles and difficulties reported. This short survey aims at responding to this need and is intended to serve as background for a further discussion by the Governing Body as to the appropriate action to take with respect to Convention No.132.
United Mizrahi 28.11.90, Immunity for Suit? - Mareva Injunctions, Constructive Trusts and the Salutary Tale of Mizrahi Bank
Authors: Breen Oonagh B.
Published: April 2022

A Mareva injunction allows a claimant to freeze a defendant's assets pending litigation. The injunction regularly contains provisos for the defendant to be able to meet certain types of regular expenditure and meet legal costs. The defendant in United Mizrahi Bank was being sued for breach of trust: he was an employee of the bank who had allegedly arranged for customers to pay money to entities controlled by him. The bank obtained a Mareva injunction pending the hearing of its claim for the return of the moneys obtained through this breach of trust. The claim was proprietary in nature. The bank could "trace" its ownership of the funds into the hands of the defendant and his associates.

The defendant sought declarations from the English High Court that by using some of the frozen assets to fund his legal expenses in defending the action, he would not be in breach of the Mareva injunction, and that if the claim against him was upheld, the expenditure of money on legal services would not be regarded as a further breach of trust. In relation to the first point, Rattee J held that the Mareva injunction contained a specific proviso for legal expenses, and therefore the use of assets for this purpose could not be a breach of the injunction. In relation to the second point, Michael Burton QC was unable to provide reassurance. Although the defendant would not be in breach of the Mareva injunction by using the disputed assets to fund his defence, it was possible that the assets would be found to be the property of the bank. If they passed into new hands - in casu those of the defendant's solicitors - there was a risk that those solicitors might also be made subject to a claim for their return.
BGH, Urteil vom 7. Juli 1998 - Zu den rechtlichen Auswirkungen eines Kalkulationsirrtums -
Authors: Mota Pinto Paulo , Theodorou Heleni , Kerschner Ferdinand
Published: April 2022

The decision of the BGH was based on the following set of facts: The claimant, a public authority, advertised for tenders for carpentry work on a building project. The defendant building firm submitted the lowest tender - in comparison with five others received. After the deadline for submission of tenders had passed, the building firm informed the claimant that an error had been made in the calculation of the tender price. The transport and assembly costs had been left out by mistake, and the firm asked the claimant to take the tender out of the competition and offer the contract to someone else. The claimant refused to do so, and gave the contract to the defendant without taking the error into consideration. When the defendant did not proceed with the work, it was eventually given to someone else. The claim asserted against the defendant was for the additional costs incurred in comparison with the defendant's tender.

The Landgericht dismissed the claim, and the claimant's appeal was also unsuccessful. The appeal in revision by the claimant led to the quashing of the appeal court's decision and a reference of the case back to the appeal court. According to the judgment of the BGH, an mistake in calculations was not of itself a sufficient reason for avoiding a contract, if the recipient of the erroneous information knew of it or had avoided obtaining that knowledge in bad faith. Nevertheless, the recipient of the erroneous information - on the basis of precontractual responsibility or abuse of rights - might be obliged to point out to the informer his mistake. In the tendering process, a public contractor was not usually under any obligation to check the tenders for mistakes in calculation or to make further investigations; but exceptionally such a duty might exist when the fact of a mistake in calculation and the unreasonable consequences thereof for the tenderer is obvious from the tender or from other circumstances known to the contractor.

The following contributions examine the judgment from the standpoint of Austrian, Portugese, Swedish and Greek law.
Collective Agreements and Competition Law. The Albany Puzzle, and van der Woude
Authors: Evju Stein
Published: April 2022

The key issue of this article is the relationship between competition law and Collective Bargaining. The ECJ decision in Albany is the point of departure. First, the author briefly recapitulates the facts and issues of those cases. Second, he focuses on the Advocate General's opinion and the Court's reasons for according an immunity to the collective agreements at issue. Thirdly, he addresses some of the questions that may be raised in view of the Court's reasons. Finally, he considers van der Woude and its possible implications on the issues at large.
Towards a European Sales Law — Legal Challenges Posed by the Directive on the Sale of Consumer Goods and Associated Guarantees
Authors: Jeloschek Christoph
Published: April 2022

This introductory paper sets out the questions dealt with in the other papers on sales law in this special issue of the European Review of Private Law. The first question is how the Directive will be implemented: in a separate act, within existing sales law, or as a catalyst for law reform. Three substantive issues are then highlighted: how to define the consumer, the hierarchy of remedies, and guarantees. Finally, the effects of the Directive on the ongoing debate concerning the harmonization of private law in Europe are considered.
Scottish Law and the European Consumer Sales Directive
Authors: Hogg Martin
Published: April 2022

The European Consumer Sales Directive will not greatly alter existing Scots law as it relates to implied terms concerning the nature and quality of goods. It will, however, introduce into Scots law a new remedy entitling the consumer to repair or replacement of defective goods. In some respects existing Scots law gives greater protection to consumers, for instance in the availability of the right to terminate the contract for breach as a primary remedy, and it is to be hoped that such protection remains entrenched even although the Directive envisages termination for breach as a secondary remedy.
What do Consumer and Commercial Sales Law Have in Common? A Comparison of the EC Directive on Consumer Sales Law and the UN Convention on Contracts for the International Sale of Goods
Authors: Kruisinga Sonja
Published: April 2022

The EU Directive on certain aspects of the sale of consumer goods and associated guarantees is largely based on the UN Convention on contracts for the international sale of goods (hereafter: CISG). Especially in the context of non-conformity, the provisions seem very similar. A few differences can be mentioned, however. The CISG contains an obligation, for example, for the buyer to inspect the goods within as short a period as is practicable in the circumstances and to give notice to the seller of any lack of conformity within a reasonable period of time. The Directive, however, states that the Member States may introduce an obligation for the buyer to inform the seller of a non-conformity within a period of two months from the date on which the buyer detected such a lack of conformity, but there is no obligation for the Member States to do so. No obligation exists for the buyer to inspect the goods either. The provisions in the Directive give a very high level of protection to the buyer, whereas the CISG, and also the case law which is based on the CISG, seem to afford more protection to the seller.
The Transposition of the Consumer Sales Directive into the Greek Legal System
Authors: Arnokouros Georgios I.
Published: April 2022

The Greek Civil Code has been drafted mostly as a result of the influence of the Pandectists school of legal thought. Its historical roots account for that trait. Therefore, the implementation of the Consumer Sales Directive poses similar challenges to the Greek legal system, as it does to other legal systems of the Germanic family. However, certain issues may be unique, such as the current legislation on commercial guarantees, the existing definition of the notion of consumer, the place which consumer law occupies in the legal system as a whole and the associated implications for the process of transposition of the Directive into the Greek legal system. Nevertheless, that which has not been very much discussed in the legal literature -and this contribution aspires to inform the international readership- is the overall attitude of the private law experts in Greece towards the revision of the Civil Code, on the one hand, and the harmonisation of European Private Law on the other.
International Antitrust Co-Operation Agreements
Authors: Mazard Camelia C. , Fullerton Larry
Published: April 2022

This article addresses recent developments in the application of national antitrust laws to cross-border business activities, and the resulting need for antitrust enforcement authorities in different countries to co-ordinate their enforcement efforts. This article attributes the increase in cross-border antitrust enforcement to four trends: the increasing globalisation of business, the increasing proliferation of new antitrust laws around the world, the increasing acceptance of the "effects" test for antitrust jurisdiction, and the increasing liberalisation of trade barriers. The article then highlights both political and practical problems that have arisen from the points of view of antitrust enforcement agencies and affected private sector interests, stemming from the increasing extraterritorial application of antitrust laws. This article presents an overview of international co-operation agreements, focusing on US bilateral and multilateral co-operation agreements, and discusses how international co-operation in this area may affect private sector interests. Companies based in Europe should understand that any cartel conduct in which they may be involved, and any merger transactions, may be subject to review by antitrust enforcement authorities in multiple jurisdictions, including the United States, to the extent that those activities may injure or threaten injury to consumers in those jurisdictions.
Globalisation and Conflict in Competition Law; Elements of Possible Solutions
Authors: Grewlich Alexandre S.
Published: April 2022

Discrepancies between various stances towards competition policy have a tendency to lead towards trade conflicts. Private restraints resulting from anticompetitive arrangements are perceived as becoming more prominent.

In the age of globalisation it is possible to distinguish six basic approaches towards potential solutions regarding conflicts in competition law: firstly, an agreement on a binding universal antitrust code; second, a combination of minimum standards and a mechanism called international procedural initiative; third, a harmonisation of national antitrust laws; fourth, a "plurilateral agreement on competition and trade" as put forward by the EU; fifth, a strengthening of effective networks of peers (notably enforcement agencies); and sixth, a "plurilateral framework" combined with binding "positive comity" and dispute solution instruments.

After consideration of pertinent transborder antitrust cases, such as Boeing/McDonnell Douglas and WorldCom/MCI, the article deals with different competition cultures and notably reviews the workability of minimum standards, non-discrimination rules, surveillance and enforcement, "positive comity", dispute settlement, "single order" or networks of peers.

A basic distinction is being made between harmonisation, co-operation and "positive comity". The part on "positive comity" particularly deals with the OECD-Recommendations, the 1991/1998 EU-US Agreement, the EU's suggested WTO Competition Rules and the proposals put forward by the International Competition Policy Advisory Committee (ICPAC). A particular effort is made to assess the benefits and limitations of "positive comity".
Fiscal Aid in the EC; A Critical Review of Current Practice
Authors: Nicolaides Phedon
Published: April 2022

The purpose of this article is threefold. First, it reviews Community policy on operating aid and explains why it is normally not permitted. Fiscal aid is a form of operating aid. One cannot understand many of the competition problems caused by fiscal aid unless one understands the nature and the issues raised by operating aid.

The second objective is to carry out a similar review of fiscal aid. In general, tax provisions that discriminate in favour of or treat in a different manner certain companies may be regarded as a form of State aid. The problem, however, is that tax systems are not uniform. Immediately there is a problem of what type of differentiation is acceptable and what type is State aid and therefore incompatible with the common market. The article evaluates the various tests of "objective differentiation" that have been proposed in the literature.

The third and most important objective of the article is to propose an economically meaningful method of distinguishing between tax provisions that are a hidden form of State aid and those that are not. Because tax measures may favour certain companies or activities even when they are not overtly discriminatory, the proposed method involves a multi-stage test.
Workers' Freedom of Association in the United States under International Human Rights Standards
Authors: Compa Lance
Published: April 2022

International Labour Rights can be found among the Universal Declaration of Human Rights and other United Nations instruments which set the standards for Human Rights at work and in general. It is stated that all people are entitled to freedom of association and the right to form and join trade unions. The United States fails to meet many of the standards pertaining to the International Trade Organizations Fundamental Principles. In many case studies where it is proven that companies are neglecting to follow the laws about organization there is little done to correct the situation. There remains much room for improvement in the United States legislation in order to better the working conditions and workers' freedom to association.
Cour de Cassation, 12.11.98 'Les Pouvoirs et les Obligations — de l'usufrutier Belgium Case Note
Authors: De Marez Dominique
Published: April 2022

A l'instar de la doctrine française, confirmée entre-temps par une jurisprudence constante de la Cour de Cassation française, l'on peut également plaider en droit belge pour faire une distinction, dans le contexte de l'usufruit d'actions, entre d'une part les actions qui font partie d'un portefeuille de valeurs, et d'autre part les actions pour lesquelles ce n'est pas le cas.

Dans le cas d'un usufruit d'actions qui appartiennent à un portefeuille de valeurs, l'on peut affirmer que le portefeuille doit être considéré dans son ensemble — et non du point de vue de ses actions individuelles — comme l'objet de l'usufruit.

En s'appuyant sur ce principe, l'on peut défendre la thèse que l'usufruitier d'un portefeuille de valeurs a le droit de disposer des actions qui font partie du portefeuille, à condition que la contrepartie des actions soit utilisée pour acquérir d'autres valeurs. L'objet de l'usufruit, le portefeuille de valeurs, doit en effet rester en état.

En acceptant cette thèse, l'on en arrive à une extension sensible des compétences juridiques de l'usufruitier d'un portefeuille de valeurs, ce qui se situe d'ailleurs en droite ligne des points de vues qui ont été adoptés par une partie de la doctrine belge.
A New Phase of European Social Policy: The EMU and Beyond
Authors: Treu Tiziano
Published: April 2022

From the Treaty of Rome in 1957 the European institutions made a significant step forward towards shaping the common policy and set of rules but they still have to overcome national traditions. The Acte Unique and Maastricht Treaty contributed greatly in the EU policy harmonization. In the light of the EU enlargement the author considers that the EMU will have profound consequences on the economies and on the social systems of the Member States but such an enlargement imposes at its turn innovations not only in social practices but in political decision making as well. The possibility of candidate countries to take full advantage of the economic and social opportunities of the enlargement requires specific innovation in the IR practices in the very techniques of the policy coordination and greatest responsibility of European institutions. Although in most areas the basic policy guidelines have been determined by the European Council and Commission, much remains to be done in order to attain the ambitious goals set by the European Summit at Nice and Stockholm: higher and better employment, common welfare standards, equal opportunities for all the components of the European society. Of course, it requires a better finalization of European economic policies and demands policy priorities consistent with the proclaimed social goals.
What Has Equality Got to Do with Labour Law? An Italian Perspective
Authors: Del Punta Riccardo
Published: April 2022

Unusually among European constitutions, the Italian Constitution provides not just for formal equality, but in Article 3, paragraph 2 also places the state under a duty to intervene on the basis of substantive equality, to remove obstacles to the effective participation of workers in the political, social and economic organisation of the country. A more specific anti-discrimination provision is contained in the Statute of Workers' Rights of 1970. The tension between the social democratic ideal of equality in terms of redistribution of income, and more recent, market-orientated conceptions of equality of opportunity, is present in doctrinal debates and in the evolution of case law. The equality principle is likely to retain its importance in part because its meaning is capable of shifting over time, so as to adjust to new political and economic conditions.
La Définition et l'exercice des Compétences Externes de la Communauté Européenne au Domaine de la Coopération dans les Matières Civiles Ayant une Incidence Transfrontiere
Authors: Thoma Ioanna
Published: April 2022

Before the coming into force of the Treaty of Amsterdam, the cooperation in civil and judicial matters was realized under the institutional framework of the third pillar and particularly via the classical type of international conventions/ treaties concluded between the Member States. Article 65 of the Treaty of Amsterdam transferred part of the cooperation in civil and judicial matters from the third to the first pillar, which consequently led to the adoption of first pillar legal instruments in this field. In the current article, we aim at drawing the present picture of external competences of the European Community and the Member States regarding the cooperation in civil and judicial matters among themselves, but most importantly with third non-Member States. The case law of the European Court of Justice has established certain criteria regarding the exclusive character of the external competences of the Community. For the moment, however, the solutions adopted by the Community organs in the area of cooperation in civil and judicial matters from the point of view of external competences seem to be frequently inconsistent. The perspective of an international convention, a multinational instrument dealing with matters of civil and judicial cooperation just like secondary EC law highlights the perplexity of the questions concerning the sharing of competences between the Member States and the Community. In this new — apparently vague — legal environment, the definition of the role and significance of classical private international law rules needs to be systematically elaborated.
BGH, Urteil vom 23.6.1999 — Zu den Voraussetzungen des Konkludenten Abschlusses Eines Selbständigen Beratungsvertrages Über den Künftigen Kaufgegenstand, für den die Allgemei
Authors: Riedler Andreas , Salas Murillo Sofía del Pilar de
Published: April 2022

The BGH based its ruling on the following facts: the defendant manufactured high-quality garden furniture and wooden fences. He used the plaintiff's products for the coating process since 1987. In the beginning, the varnishing took place in Denmark. In the wake of problems that occurred in 1988 when using varnish of other producers for the coating process, the defendant asked the plaintiff for advice. Early in 1989, she asked for further advice, when she had decided to build an own varnishing plant, which she subsequently acquired for 500.000 DEM. Later on, the defendant's products were refined by using — amongst others — plaintiff's varnish. As complaints about the quality of the varnish arose, an expert examined the varnishing process. In 1992 he concluded that the process recommended by the plaintiff was unfit. The plaintiff sued for payment of the delivery of varnish; the defendant invoked set-off with damages and filed a counter-claim.

At the heart of the dispute is the following question: under which requirements does an independent advice contract come into existence, that is next to the seller's secondary duties to advise as a result of a sales contract? Which period of limitation is therefore applicable: the general one of § 195 BGB, or the shorter, sales-specific one in § 477 BGB? In this case, the BGH ruled in favour of a separate advice contract by arguing that this is justified in exceptional circumstances, i.e. if the activity of advice exceeds by far the scope of the regular secondary duties to advise in sales contracts, taking into account the content, scope, intensity and significance of the advice for the buyer. The authors of the following case notes analyse this decision from the Austrian and the Spanish point of view.
Private Standards between Soft Law and Hard Law: The German Case
Authors: Kocher Eva
Published: April 2022

Codes of Conduct or private standards by transnational enterprises on the compliance of social minimum standards in production have a legal character, although they are usually not meant to be legally binding. Their legal character derives from their integration into private contracts on the one hand, and from the legal context of competition and consumer law on the other. We can realize this when we, for example, take a closer look at the German legal context. Legal theory should accept these private standards as a way of broadening the public debate over regulation of economic activity into a public discourse on legal standards. Legislation could also help by establishing a more specific and outspoken legal framework.
The Consolidation of Family Rights of Preferential Acquisition Contained in Spanish Regional Laws in Relation to Swiss Legislation: The Restoration of the Droit de Préemption des Parents
Authors: Azcona Aurora López
Published: April 2022

The Spanish Civil Code of 1889, in keeping with the liberal ideas of the period, refrained from legislating on the principle of preferential acquisition. However, some pre-emption rights have survived in certain regional laws, in spite of severe criticism, which proposed its restriction or even its abolition. This study tries to show that those rights, still existing in the Civil Codes of Aragon, Catalonia, Navarre and the Basque country, serve a social function that deserves to be protected. In 1951 the Swiss legislator integrated a similar right, the parental pre-emption right (reformed in 1991). We analyse the similarities and differences between this institution and their Spanish counterparts and assess their importance in our time.
Systemwechsel im Internationalen Anerkennungsrecht: Von der EuGVVO Zur Geplanten Abschaffung des Exequaturs
Authors: Stoppenbrink Katja
Published: April 2022

The communitarisation of judicial cooperation in civil matters by the Treaty of Amsterdam marks a new epoch in the unification of law in Europe. The European law of conflict of jurisdictions is affected by this, too. On 1 March 2002 Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters entered into force, thus replacing the European Convention of 27 September 1968 (the so-called Brussels Convention). However, the “re-enactment” of the Brussels Convention as a Community regulation is only the first move towards a profound change in the European law system of recognition, a change aimed at the abolition of the exequatur. In accordance with the principle of mutual recognition the objective is to create “freedom of movement for judgments” between the EU Member States (I).

First this paper presents the procedure of recognition and enforcement of foreign judgments under the Brussels Convention as well as the modifications introduced by the new regulation (II), focussing on the catalogue of defences to recognition in article 27 of the Brussels Convention, which until now have had to be controlled ex officio by the judge responsible for the recognition of proceedings. Under the new regulation the test of defences to recognition is no longer applied ex officio but shifts to the appellate procedure (articles 43 and 45; III). The paper concentrates on the consequences of the new regulation for the equity of the procedure. Therefore problems resulting from the intended abolition of the exequatur are discussed (IV). Central features of the analysis are the ensuing curtailment of judicial review (and thus of legal protection) and the abolition of the ordre public test. The concludes that the latter cannot be given up as ultima ratio as long as there remain differences between procedural (and hence constitutional) standards in the EU member states, i.e. as long as there is no truly European judicial area (cf. Article 61 EC Treaty; V).
Contract Logic and Efficiency Concerns Considerations for an Efficiency Approach to Antitrust Analysis in Keeping with the Logic of Institutional Choice
Authors: Boscheck Ralf
Published: April 2022

Applying transaction cost thinking to specific case assessments often results in welfare implications that contrast sharply with the respective positions taken by more prominent schools of antitrust analysis. And yet, difficulties in generalising and operationalising transaction cost economics for the purpose of policy formulation and guidance appear to forestall a broader endorsement. Unsurprisingly therefore, the EU’s new “economic-based” competition rules on vertical and horizontal restraints make little use of the approach’s superior ability to shape contract analysis. But even though transaction cost economics may seem out of reach for authorities aiming to devise simple, higher level default standards, transferred as an assessment tool to lower level regulation and case assessment, it may provide for efficient regulatory delegation in line with the White Paper’s broader competition policy reforms. What is required is an explanation of the broader economic contracting logic that could structure rules of reason, limit the costs of wrong decisions and improve the efficiency of enforcement. This article presents the notion of contracting as balanced (im)-mobilisation, to first cast in doubt the standard “market-mobility”-based reference for evaluating contractual arrangements, and a range of auxiliary assumptions linked to it. It then formulates guidelines for assessing alternative arrangements for the purpose of antitrust analysis, and compares the positions taken by the so-called “Harvard” and “Chicago” schools on a range of substantive issues of antitrust concern with those based on the proposed, explicit and systematic evaluation of transaction cost. Still, advancing the notion of (im)-mobilisation to improve antitrust analysis in keeping with the logic of institutional choice can only be the first step towards rendering EU competition rules truly “economics based”.
The Application of European Competition Law to Sports Broadcasting
Authors: Robertson Aidan
Published: April 2022

This article considers the application of European competition law to agreements for, and practices relating to the broadcasting of sports events. Along with Hollywood first run movies, live exclusive broadcasting rights to top football and Formula One grand prix motor racing have been key to selling pay TV subscriptions. European competition law has sought to ensure that these rights are exploited in a way which retains the ability for rival broadcasters to enter the pay TV market. The recent UEFA Champions League case gives significant guidance as to the future application of competition law in this area. However, commercial developments may have outstripped the Commission’s remedies.
ECJ 10 May 2001, Henning Veed fald v. Århus Amtskonnune, C-203/99 (Danish product liability kidney case)
Authors: Howells Geraint G.
Published: April 2022

This preliminary ruling deals with the conditions for an exemption from liability for defective products pursuant to Directive 85/374/EEC.

The plaintiff, Mr Veedfald, was due to undergo a kidney transplant operation at a hospital. After a kidney had been removed from the donor, in this case Mr Veedfald's brother, the kidney was prepared for transplantation through flushing with a perfusion fluid designed for that purpose. This fluid proved to be defective and a kidney artery became blocked during the flushing process, making the kidney unusable for any transplant. The fluid had been manufactured in the laboratories of the dispensary of another hospital, and prepared with a view to its use in the hospital. The defendant is owner and manager of both hospitals. Relying on the Danish product liability law, Mr Veedfald claimed damages from the defendant.
The Political and Security Committee: Governing in the Shadow
Authors: Juncos Ana , Reynolds Christopher
Published: April 2022

The Political and Security Committee was described by the Nice European Council Conclusions in December 2000 as the ‘linchpin’ of the ESDP and yet comparatively little attention has been devoted to this highly significant newcomer to the European Union’s institutional landscape. How exactly does the committee function, for example, and what impact does it have on the definition of the ESDP and the CFSP more generally? This article attempts to shed light on the PSC and its working methods and in so doing builds on existing institutionally oriented research on the EU to examine tentatively the PSC’s impact both on European foreign and security policy as well as on the foreign and security policies of EU Member States. It will be shown that the PSC has built on the so-called ‘consultation reflex’ and other practices documented in its predecessor, the former Political Committee, to the point where Member State representatives sitting in the PSC routinely impact upon the definition of national interests and foreign policies, rather than simply bringing them to the table to be bargained over.
‘Only through Enlargement’: The New European Myth?
Authors: Giamouridis Anastasios
Published: April 2022

The paper assesses the validity of the ‘inevitable enlargement hypothesis’ – the belief that in the contemporary context of regional instability, a halt to further enlargement would inescapably undermine European Union security. The issue is confronted through the identification and inspection of the core assumptions of the inevitability hypothesis (the rationale here being that all of them must hold true if the hypothesis itself is to hold true). The paper concludes that, even though the European Union has a strong interest in addressing regional instability in Europe, she retains considerable freedom of action as to the means of achieving this.
The European Union in the Eyes of Others: Towards Filling a Gap in the Literature
Authors: Lucarelli Sonia
Published: April 2022

Building on François Duchêne’s concept ‘civilian power Europe’, a growing number of scholars have asserted the EU’s distinciveness as an international actor. This has resulted in a lively debate among supporters of the thesis and sceptical scholars. What this literature has failed to investigate so far is the extent to which the EU is (or is not) regarded as a distinctive world power by other international actors. This is precisely what this article aims to do. Building on the results of a survey on The External Image of the European Union, coordinated by the author in the framework of the Network of Excellence GARNET, the article sums up the prevalent images of the EU in Australia, Brazil, Canada, China, Egypt, Japan, India and South Africa, and at the level of NGOs and Commission delegations.
EU Foreign Policy and the Fight Against Human Trafficking: Coercive Governance as Crime Control
Authors: Friesendorf Cornelius , Berman Jacqueline
Published: April 2022

Since the late 1990s, the European Union has increased significantly its efforts against human trafficking. These efforts have, however, been fraught with contradictions, misconstrued as part of other policy debates (e.g. security, migration and enlargement) and generally ineffective in their ability to fight this global phenomenon. In practice, the EU has built a response to trafficking that privileges certain coercive practices (i.e. stronger borders, internal law enforcement and external state ‘capacity–building’) over comprehensive measures able to redress trafficking (i.e. prevention, prosecution and protection). It is the neglect of the latter that accounts, in part, for the transformation and persistence of the trafficking industry.The EU needs to address path dependencies that have led to the pursuit of a coercive and ineffective counter–trafficking governance system, paying particular attention both to the interaction between external and internal policy and to the unintended effects that this system has had on the practice of human trafficking.
Lost in Exclusivity: Implied Non–exclusive External Competences in Community Law
Authors: Maydell Niklas
Published: April 2022

Implied non–exclusive competences empower the Community to conclude international agreements and, if such power is used, forestall Member States from acting. With the focus in this field rather on the more momentous category of implied exclusive competences, the very existence of such competences has either been disputed or has been confirmed without further specification. The authors show that, after inconsistent early case law, matters have been clarified by the Lugano Opinion of the European Court of Justice. As a consequence, it is argued for the facilitation test as criterion for the coming into existence of implied nonexclusive competences and yardsticks for its application are suggested. In this context, the authors observe striking analogies to the case law on the delimitation of competences between the pillars. Finally, past and future implications for treaty–making practice are explored, among others by topical example of the Minimum Platform on Investment.
Transforming the Balkans? Lesson Learning and Institutional Reflexivity in the EU Enlargement Approach
Authors: Braniff Máire
Published: April 2022

Abstract. European Union (EU) enlargement has important implications for the political and economic transition for the candidate and ‘potential’ candidate states of the Western Balkans. Similarly, the enlargement approach has effects on the functionality of EU enlargement. The article explores the development of the relationships between the EU and the Balkans and the politics and functionality of EU enlargement approach. The article examines how through a process of lesson learning and institutional reflexivity the development of the EU enlargement approach has impacted the technical and political basis and operation of the EU enlargement approach. This has evolved because of the interplay of factors, which includes institutional reflexivity within and among key agencies. Consequently, the EU has significantly extended political conditionality, the timeframe for accession, and the mechanisms for enlargement. Hence, the article concludes that EU enlargement has conformed to the policy-learning model with consequences for the enlargement to the Balkans.
The Social Dimension of European Union Trade Policies
Authors: Kerremans Bart
Published: April 2022

The European Union (EU) is widely considered as a formidable trade power. It represents about one fourth of worldwide trade flows and generally speaks with one voice in its common commercial policies. In addition, policy-makers and scholars often regard the Union as a distinctive, ‘normative power’ in the world. From this perspective, Europe tries to be at the forefront of promoting values such as human rights, democracy, sustainable development, and social justice, this with a clear preference for supporting international dialogue and cooperation in these areas, rather than for using trade sanctions. This special issue combines both aspects of the EU’s international role. More specifically, it concerns the social dimension of the EU’s trade policies. It raises the questions of how, why, and with what impact the EU has promoted social objectives through its common commercial policies. These three questions will be addressed in this introduction, followed by a brief summary of the way in which the different contributions of this special issue deal with them.
A Litmus Test for the European Union? The EU’s Response to the Crisis in the Democratic Republic of Congo from 1996 to the 2006 Elections
Authors: Piccolino Giulia
Published: April 2022

Abstract. The present article analyses the European Union’s (EU’s) response to the multiple crises that have affected the Democratic Republic of Congo (DRC), taking as conventional starting and ending points the ‘Kivu war’ of 1996 and the 2006 elections. The article acknowledges the progress made by the EU, from a ‘virtual policy’ to a comprehensive approach toward the Congo crisis. However, it is also argued that the focus on ‘testing’ the new mechanisms for EU intervention bears the risk of overlooking their actual impact on the resolution of the crisis. A series of substantial weaknesses in the EU’s approach toward the DRC are identifi ed: the lack of coherence between development aid and crisis management; the diffi culty in addressing the transnational dimension of the crisis; and the focus on a few short-term objectives, such as elections, at the expenses of other crucial priorities.
The EU as a ‘Strategic’ International Actor: Substantial and Analytical Ambiguities
Authors: Kramer Heinz , Bendiek Annegret
Published: April 2022

The analysis attempts to evaluate the current ‘strategic’ political substance of European Union (EU) global policies and to answer the question of what kind of international actor the EU is. The study is based on the reading of comprehensive analyses of the respective ‘strategies’ embedded in inter-regional relations with Latin America, Africa, the Mediterranean, East Asia, and Central Asia as well as ‘strategic partnerships’ with India, Japan, China, Canada and Brazil – the partners that, according to the European Security Strategy (ESS) of 2003, reaffirmed in 2008, are gaining increasing clout in shaping global governance.
The European Union’s Critical Engagement with the Syrian Arab Republic
Authors: Cavatorta Francesco
Published: April 2022

This article examines the way in which the Syrian search for a renewed partnership with Europe has met with the corresponding European Union (EU) foreign policy in the Middle East and North Africa (MENA). In particular, the impact on the EU of dealing with Syria has not been analysed. This article contributes to fill this gap and examines the founding principles and policy mechanisms of EU engagement with Syria and what they tell us about the priorities, interests, and beliefs of the EU. This is important because the nature of the Syrian regime provides us with the possibility to explore how the EU engages with countries that have a very problematic relationship with the West. What emerges is that EU policy-making is not only highly complex but is greatly influenced by the regime with which it works and therefore, contrary to what many argue, is a pragmatic actor in international relations.
Resisting Resistance: Examining the Shifting Balance of Threats in the Middle East
Authors: Kandil Hazem
Published: April 2022

With the demise of the Cold War threat, Europe believed the time was ripe to push Arab regimes to liberalize. Certain of the dominance of the pro-Western axis in the Middle East, Europe had little to fear. The Lebanon (2006) and Gaza (2009) wars, however, have cast doubt over the stability of the current regional arrangement. Militias adopting asymmetric warfare strategies have performed a much better job than conventional Arab armies usually did – a development that has undermined Europe’s regional allies. Combining insights from military sociology and neo-realism, this article examines the causes and significance of this development and how the changing regional balance is curbing Europe’s liberalizing agenda.
Mapping Out Democracy Promotion in the EU’s External Relations
Authors: Cardwell Paul James
Published: April 2022

As a non-traditional actor on the international stage, the European Union (EU) presents itself as a successful example of peaceful, democratic cooperation between its Member States. Its foreign policy, existing alongside rather than replacing that of the Member States, is not driven by military strength but backed-up with formidable economic clout. The EU’s own treaty arrangements state that EU action on the international scene shall be guided by a set of principles which are central to its own existence – and the first of these is ‘democracy’ (Article 21(1) TEU). How, then, is the promotion of democracy carried out in the EU’s relations with the wider world? Defining ‘democracy promotion’ is as complex a task as identifying the myriad of policy areas in which elements of exporting the EU’s system of governance can be perceived. The purpose of this article to identify and explore the instances in which a wide conception of democracy promotion can be expressly or impliedly perceived within the EU’s external relations. The article widens the scope of analysis to map out aspects of EU external policies which do not expressly have democracy promotion as their aim, but nevertheless seek to export elements of a certain model of democracy. Instances of democracy promotion are categorized as express or implied and positive or negative. By casting a wide net, the extent of democracy promotion can be seen to be wider than previously thought which helps to broaden the debate about how the EU puts in place its Treaty obligations to promote democracy.
The New Faces of Lisbon: Assessing the Performance of Catherine Ashton and Herman van Rompuy on the Global Stage
Authors: Howorth Jolyon
Published: April 2022

The Treaty of Lisbon created two key new positions: President of the Council and High Representative for Foreign Affairs and Security Policy Vice President of the Commission. These positions were filled, respectively, by Belgium's former Prime Minister, Herman van Rompuy, and the UK's Catherine Ashton. This article examines the process by which these appointments were made and assesses the performance of the post holders during the first eighteen months of their tenure. It asks what could reasonably have been expected of these two leaders in a context where Member States continue to exercise power and influence alongside rather than via the European Union and in which major events - the sovereign debt crisis and the Arab spring - have challenged the incumbents to stamp their mark on Europe's position in the world. It concludes that van Rompuy has performed relatively satisfactorily, whereas Ashton is widely perceived to have failed in making her mark.