bluuebunny/crossref_metadata_2025 huggingface dataset:
The Relevance of Reverence; Undue Influence Civilian Style
Authors: du Plessis J. , Zimmermann R.
Published: February 2017

Persons in positions of authority are able to engender feelings of reverence in others. Such reverence, unfortunately, can lead to exploitation. For many centuries, courts and legal writers have struggled to come to terms with this problem. Reverence does not fit comfortably into the traditional niches of metus (because it does not necessarily involve fear instilled by threats of harm) and dolus (since inducing fear is not the same as deception). Yet, at times, it simply cannot be ignored in assessing the validity of a contract. This article shows that medieval and early modern civil lawyers re-interpreted the Roman concepts of metus and dolus to provide relief to those whose contractual intention had been severely and detrimentally distorted by feelings of reverence. However, from about the 17th century onwards the inchoate civilian notion of undue influence gradually withered away, and it was only in England that a more mature doctrine of undue influence evolved.

The mixed legal systems of Scotland and South Africa, faced with insufficiently developed rules of Roman-Scots and Roman-Dutch law, were bound to be attracted by the English concept which they eventually decided to embrace. But it was not a complete reception. Neither Scots nor South African law make use of the presumptions of impropriety which characterize undue influence in English law. Yet, the works of medieval and early modern lawyers reveal that the use of presumptions is by no means alien to the civilian tradition, and that they can be employed usefully to assist those who might otherwise find it difficult to prove that they have been exposed to a kind of influence which, in all likelihood, has to be characterized as ‘undue’. The position in English law merely reflects what in civilian systems has always been regarded as the appropriate solution in cases of contracts affected by metus.

The experiences in South Africa and Scotland also contain a lesson for the broader comparative community, for they appear to confirm the wisdom of accepting a notion of undue influence into a set of principles of European private law.
Higher Education, Equal Access, and Residence Conditions: Does EU Law Allow Member States to Charge Higher Fees to Students Not Previously Resident?
Authors: Davies Gareth
Published: February 2017

This article looks at the law and policy issues surrounding the practice of charging uniform fees for higher education to home students and students coming from other EU Member States. It begins with the observation that within the EU such fees are heavily subsidised by governments and therefore amount to a financial benefit (or a disguised grant) to students. In the light of this, this article suggests that restricting that subsidy to students resident prior to their studies would be not only compatible with recent case law on non-discrimination but would also fit better with the underlying logic of free movement, which denies any right to benefits for non-economic recent migrants. Secondly, it looks at the policy, and finds that while equal fees have a number of very positive social effects, they also carry moral and economic risks. A better approach, less distorting of the market for higher education and more consistent with the wider EU approach to welfare migration, might be to require exportability of subsidies from the student's state of origin.
Cedaw and the European Union's Policy in the Field of Combating Gender Discrimination
Authors: Holtmaat Rikki , Tobler Christa
Published: February 2017

This paper aims to show that the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) can provide inspiration and open new avenues to solve some of the problems that are the consequence of the currently insufficient approach to gender equality under European Community law. It is argued that the approach of CEDAW should be applied in both interpreting existing EC law and in making new law. In interpreting existing EC sex equality law, the Convention's role as a source of inspiration must be taken much more seriously than is currently the case. As for the drafting of new law, it is true that the EC itself is not a signatory to CEDAW and, therefore, not bound by the Convention in a strict legal sense. However, the Member States are signatories. As such, they are under an obligation to take the Convention seriously, an obligation that also relates to the making of EU and EC Treaty law that, in turn, provides the framework for the adoption of secondary EC law.
Emancipation or Deprivation for the European Legal Mind? the Contribution of the Legal Traditions Approach
Authors: Husa Jaakko
Published: February 2017

This article claims that some of the epistemological basic-conceptions of the European legal mind may lead to deprivation and exclusion of pluralistic thinking. The problem of exclusive legal mind is tackled with the help of H.P. Glenn's Legal Traditions of the World (2nd ed., 2005). The argument of Glenn, i.e. reconciliation of legal traditions, is put to use in the context of human rights. The ECtHR case Refah (2003) forms an example of non-reconciliation and of epistemology of deprivation. The case appears to show that there is exclusion of other type of legal knowledge and little willingness to entertain detailed and sensitive argumentation. Comparative legal scholarship preaches pluralism, reconciliation, polycentricism, but that does not seem to fit with our de facto exclusive legal mind. The considerations in the article highlight the argument by Glenn and its challenge to the European legal vision i.e. the willingness of comparative law-based learning to move towards a form of epistemic emancipation. The article concludes with the identity of comparative law itself: what it is and what one may expect from it.
The Eurohypothec and the English Mortgage
Authors: Watt Gary
Published: February 2017

The recent Green Paper on Mortgage Credit in the EU (Brussels: European Commission, 2005) confirms that the European Commission is giving serious consideration to ‘the feasibility and desirability’ of a pan-European mortgage (‘Euromortgage’ or ‘Eurohypothec’) to facilitate the integration of cross-border financing of real estate investments. The purpose of this paper is two-fold. First, to examine the proposed Eurohypothec as a central case in the larger project of attaining cross-border commonality in European private laws of immovable property. Second, to consider whether the prevailing model for the Eurohypothec can be accommodated in England and Wales. It is argued that doctrinal indeterminacy or ‘shapelessness' in national property institutions of EU Member States assists in the reception of pan-European institutions alongside national laws, and thereby advances the project to achieve ius commune Europaeum in property law. It will be demonstrated that the mortgage law of England and Wales exemplifies the necessary doctrinal indeterminacy and therefore provides fertile ground for the reception of the Eurohypothec.
Towards the Control of Private Acts by the European Court of Human Rights?
Authors: Cherednychenko Olha
Published: February 2017

This contribution critically analyzes the current approach by the European Court of Human Rights to the applicability of fundamental rights enshrined in the European Convention on Human Rights to private acts. It explores the recent case law of the Court primarily through the case of Appleby and Others v. The United Kingdom (Appleby)1 and the case of Pla and Puncernau v. Andorra (Pla)2, looking at its implications for the relationships between private parties under the private law of the States parties to the Convention and, in particular, the role of the doctrine of ‘margin of appreciation’ in limiting the control of private acts by the Court as to their compatibility with fundamental rights.
Celebrating Diversity? The Implementation of the European None-Discrimination Directives in the UK
Authors: Vickers Lucy
Published: February 2017

This article will look at the Regulations introduced in the UK for the implementation of the EU non-discrimination Directives adopted in 2000.1 It provides an overview of the new legislation introduced in the UK to protect again discrimination on grounds of religion and belief, and sexual orientation as well as the proposals on age discrimination.2 These are all new grounds of discrimination, which were not previously covered in British discrimination law. This article also looks briefly at the amendments introduced to the Race Relations Act and Disability Discrimination Act to comply with the requirements of the directives. The government has taken a piecemeal approach to amending the law, and in the process has made discrimination law in the UK hugely complicated and somewhat chaotic. The end result has not furthered the overall aim of equality as far as it might.
The Principle of Gender Equality, the Goods and Services Directive and Insurance: A Conceptual Analysis
Authors: Di Torella Eugenia Caracciolo
Published: February 2017

The principle of gender equality is arguably one of the most successful stories of EU law. In recent years, it has evolved in order to adapt to the needs of a fast changing society. Such evolution is mirrored in the legislative instruments recently adopted. This article focuses on one of the most recent Directives, namely the 2004 Goods and Services Directive with a view to assess how it incorporates the “new” principle of gender equality. In particular, the Goods and Services Directive addresses the complex relationship between the principle of gender equality and insurance. This paper concludes that although the Goods and Services Directives is potentially a very important addition to the EU gender equality framework, several issues, such as the limited scope of application of the Directive, have significantly undermined its potential.
Positive Action and the Limits of Existing Law
Authors: O'Cinneide Colm
Published: February 2017

Conventional anti-discrimination law has often little impact upon structural and complex forms of discrimination. As a result, states throughout the EU are attempting to use various types of positive action strategies to address many of the inequalities experienced by disadvantaged groups. However, at both EU and national levels, the development of these positive action strategies has been stunted by the existence of two types of legal obstacles. Firstly, a lingering attachment to ‘formal’ equality concepts has resulted in a confusing, incoherent and complex case-law that has a ‘chilling effect’ on the use of positive action. Secondly, there are few effective and substantial legal requirements imposed upon public and private bodies to implement ‘mainstreaming’ and other positive action strategies. These deficiencies in both EC and national equality law mean that the use of positive action strategies has in practice often been half-hearted and lacking in real impact. Without significant shifts in how EC and national legal frameworks conceptualise and regulate positive action measures, the much discussed shift towards a ‘substantive equality’ approach that many commentators have advocated will remain a vague aspiration rather than a concrete reality.
Is Risk Differentiation on European Insurance Markets in Danger?
Authors: Faure Michael
Published: February 2017

The paper deals with the importance of risk differentiation on insurance markets. It is argued that a tendency towards a prohibition of risk differentiation supported by the equality principle may endanger the insurability of particular risks. However, Council Directive 2004/113/ECC implementing the principle of equal treatment between women and men in the access to and supply of goods and surfaces still provides sufficient scope for insurers to apply risk differentiation. Examples are given from traffic insurance and flooding insurance to demonstrate that also insurers themselves sometimes underestimate the importance of risk differentiation.
Developing Euro-Biocitizens through Migration for Healthcare Services
Authors: Flear Mark L.
Published: February 2017

The effects of the Community right to migrate for healthcare services on patients have yet to be studied extensively. This paper uses a sociological institutionalist perspective to show how such migration might cause change in patients, especially their motivations, agency, self-understanding, identity and citizenship. This suggests the development of Euro-biocitizenship and patients as Euro-biocitizens, as well as providing a rejoinder to critiques of the right, and calls for new governance to address its effects.
Why Plea-Bargaining Fails to Achieve Results in So Many Criminal Justice Systems: A New Framework for Assessment
Authors: Garoupa Nuno , Stephen Frank H.
Published: February 2017

The myth of American exceptionalism in the matter of plea-bargaining is certainly by now quite untrue. In addition to forming an important part of criminal procedure in the United Kingdom, plea-bargaining has been transplanted to several civil law countries such as France and Italy. Informal versions, based on non-trial settlement, have been observed in Germany, Belgium, the Netherlands, and around the world. The Law and Economics literature on plea-bargaining views it as an efficient instrument of criminal procedure because it reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. Yet the success of transplants relies on the existence of appropriate incentives, and the detailed study of the Italian experience provides a good indication that the traditional inquisitorial system might not generate such incentives. Instead, this article offers a new theory emphasizing the role of the prosecutor and that of the defence counsel. We argue that the incentives of the prosecutor and those of the defence counsellor are determinants of the success or failure of plea-bargaining. We are sceptical that plea-bargaining can lead to or is consistent with the desirable outcome in many circumstances. In particular, a major implication of our analysis is that the comparative efficiency of plea-bargaining to a larger extent depends on the possibility of a legal system to address the multiple principle-agent problems in criminal litigation.
EU Family Policies between Domestic ‘Good Old Values' and Fundamental Rights: The Case of Same-Sex Families
Authors: Baraldi Matteo Bonini
Published: February 2017

Recent European Union action has shown a clear impact on various areas that touch upon family matters and family law, such as free movement, immigration, and asylum on the one hand, and divorce, parental responsibility, maintenance, and property relations on the other. Research has shown that in today's Europe, families split up more easily than before, people cohabit, they become parents or even single parents outside marriage, and same-sex partners can marry and adopt children in some countries. This article, while providing an overview of older and newer EU measures that have an impact on lesbian, gay, and bisexual (LGB) partnerships and families, highlights patterns of continuing exclusion, as well as possible solutions. It focuses on the developments that followed the adoption of the 2004 Hague Programme, and on the direction that EU law has taken since. Family issues are sensitive matters and entail the risk that Member States use discussion of such matters in order to boost national rhetoric on ‘good old values’. This article argues that the connections between free movement, EU citizenship and the general principle of equal treatment should be seen not only as a central concern for the individuals directly affected, but also as a test case for assessing the extent to which the EU can truly affirm the supremacy of certain fundamental rights that it claims to recognize.
The Politics of Risk and EU Governance of Human Material
Authors: Farrell Anne-Maree
Published: February 2017

This paper examines the politics of EU risk governance in relation to human material. It is argued that the political context has informed the way in which risks in relation to various types of human material have come to be defined as policy problems at EU level. In turn, this has influenced the design and/or persistence of institutional arrangements to manage such problems. It is further argued that this political context has resulted in a significant level of disconnection in risk governance in the area. This has happened in two ways. First, there has been a growing level of disconnection between institutional and stakeholder demands for a more expansive approach to risk governance in the area and the narrowly-circumscribed competence under Article 152(4)(a) EC, which permits the adoption of risk regulation regimes that set minimum standards of quality and safety in relation to blood, tissue/cells and organs. Second, it has led to the development of institutional arrangements that promote a bifurcated approach to risk governance, specifically in relation to blood and tissues/cells. Although a hybrid of traditional and new governance mechanisms have been employed to address this problem of disconnection, this has nevertheless added a further layer to already complex institutional arrangements for risk governance in the area. It is suggested that a more integrated approach to EU risk governance in relation to human material is needed. Implementing such an approach would contribute to greater clarity, transparency and accountability in decision-making processes, and this could enhance public trust in what is a politically-sensitive area of governance at EU level.
Tracking Judicial Dialogue — The Scope for Preliminary Rulings from the Italian Constitutional Court
Authors: Dani Marco
Published: February 2017

In cases 102–103/2008 for the first time the Italian Constitutional Court has referred a question to the Court of Justice under the Article 234 EC procedure. This article analyses this decision in light of previous contrary case law and argues that, insofar as supremacy will be construed according to the Simmenthal doctrine, the scope for preliminary ruling from that Constitutional Court will be rather narrow, as mainly limited to principaliter proceedings.

Such a conclusion brings about an important theoretical implication. Constitutional Courts such as the Italian one will face difficulties in interacting directly with the Court of Justice and, notably, in conveying at supranational level the authentic versions of national constitutional traditions. Conversely, ordinary courts seem in a better position to play a similar role. As a consequence, if we want the Court of Justice to modify its octroyée methodology of construing common constitutional traditions, we have to place all our stakes on a judicial dialogue based on ordinary courts as the privileged interface between the EU and national constitutional environments.
Euro-Chinese Company Models: An Exploratory Journey into the Position of Directors, Shareholders and Stakeholders in Chinese and European Company Law
Authors: Olaerts Mieke
Published: February 2017

This paper examines the Chinese company model and compares it to its European counterparts. It describes the foundations of Chinese Company Law and uses them as a starting point for an explanatory journey. The revision of the Chinese Company Law entails a growing importance of its provisions for foreign investors. Article 218 of the new Company Law extends the applicability of the Law to foreign-invested companies. Despite its similarities with other jurisdictions, Chinese Company Law is unique in its approach. It intertwines legal transplants with fundamental principles of a more Chinese nature. European investors in China should be well aware of these ‘typically Chinese principles' since they influence the perception of companies in Chinese society. It goes without saying that these rudiments of Chinese Company Law affect the corporate goal which in its turn has an influence on the internal structure, management and external relations of the company. This paper examines the applicable company model in China and compares it to the existing company models in Europe. It focuses on the influence of these (company) models on the position of directors, shareholders and stakeholders.
Free Movement and Participation in the Parliamentary Elections in the Member State of Nationality: An Ignored Link?
Authors: Kochenov Dimitry
Published: February 2017

Making use of the European citizenship rights should not deprive EU citizens of the possibility of political participation at the Member State level. According to Article 19(1) EC, EU citizens may vote in municipal elections in their host Member State, not in the national elections. Consequently, EU citizens who benefited from the Article 18 EC right (or similar lex specialis rights) and moved to another Member State, effectively lose their right to participate in politics at the crucial Member State level if their Member State of nationality disallows expatriate voting, which is the case ( de iure or de facto) in a number of Member States. This article assesses the legality of this situation in the light of Community Law. Building on the assumption that the Member States will be unwilling to change the Treaties to allow for full political participation of EU citizens at the national level in their Member States of residence, other possibilities to solve the outstanding problem are sought and analysed.
Hedge Funds and Private Equity Funds under Scrutiny in the Netherlands
Authors: Hament Joost S.
Published: February 2017

Last year the Dutch Enterprise Chamber (Ondernemingskamer) of the Amsterdam Court of Appeal (DEC) ruled in several inquiry procedures (enquêteprocedures) with regard to companies wherein a private equity fund and a hedge fund participated. In these procedures the strategy as set out and followed by the management board was questioned. The rulings emphasize the importance the DEC attaches to the management board as a gatekeeper of the corporate interest (vennootschappelijk belang) which includes, among others, the interests of the employees. These rulings further confirm existing case law with respect to the corporate interest. This may have implications for active shareholders – among others private funds and hedge funds – investing in Dutch companies.

Private equity funds and hedge funds are subject to public debate with respect to their role and strategies. The industry has responded to this by way of self-imposed best practices. Recently, the European Commission has proposed the directive on Alternative Investment Fund Management, which lays down specific information requirements with respect to hedge funds and private equity.

This article describes the recent rulings of the DEC. It also addresses the best-practices as well as the proposed AIFM directive. It will be assessed that both from case law and the proposed directive, the fund industry should be aware of the role they fulfil in the companies under their management.
Of Harmonization and Fragmentation: The Problem of Legal Transplants in the Europeanization of Private Law
Authors: Niglia Leone
Published: February 2017

The purpose of this Essay is to re-evaluate the project of private law harmonization via directives in the vocabulary of classical comparative scholarship on legal transplants. The Essay draws on writings according to which the Community legislature, when employing foreign rules for the purpose of harmonising private law, does a job that resonates with that of any other legislature wishing to introduce into legislation rules based on foreign material. For it will have to deal with the extent to which the intended legal transplant can be successfully actualised or otherwise, in relation to favourable or not contextual factors. On the basis of this approach two claims look appropriate. First: that, in shaping and advancing the agenda of private law Europeanization, the actors involved in the Community legislative process pay little attention to a range of adverse contextual conditions that happen to obstruct harmonization. This is what legal comparative analyses that focus on legal transplants would call a ‘misuse’ of the comparative legal method, which typically results, as it does in our case, in the failure of various intended legal transplants. Second: that the Community legislature can learn one important lesson from the teachings of comparative scholarship on legal transplants. That is: there are situations in which contexts, at the receiving end of the legal transplants, are fundamentally at odds with the rules-to-be-transplanted. Although the purpose of harmonization is to narrow down the variety of laws, in such problematic situations the harmonization agenda could be adjusted in relation to the targeted contexts, so as to avoid problems associated with the rejection of various legal transplants. The article suggests a number of context-sensitive techniques available for a legislature committed to avoid ‘misuse-by-legislation’ in as diverse areas as unfair contracting, product liability and guarantees. It is submitted that the ongoing work of the Commission aimed at reviewing a triad of directives (the ‘Product Liability’, ‘Unfair Terms' and ‘Doorstep’ Directives) would be ideal terrain for initiating the required change, if only because of the ample accumulated evidence of the many failures in enforcing key rules contained in each such directive. It is also submitted that the Commission, regrettably, is not at all embracing such techniques. Recent moves towards ‘full harmonization’, such as proposed ‘directive on consumer rights' are criticised in this light.
Informed Consent and End-of-Life Decisions: Notes of Comparative Law
Authors: Casonato Carlo
Published: February 2017

Informed consent for medical treatment is often said to be a legal issue which is as much discussed as little understood. This article develops an analysis of the concept of informed consent particularly at the end of life from a comparative perspective, dividing a number of relevant countries into two models – one partially open and one partially closed – neither of them allowing for extreme solutions such as the right to die, on the one hand, and the duty to be kept artificially alive beyond one's own idea of human dignity, on the other. According to such distinction, and paying particular attention to the law-in-action governing end-of-life decisions, the author considers similarities and diversities, as well as evolving common trends.
Epistemological Considerations in Private Law: Exploring Taxonomical Structures in the Common Law, Civil Law and beyond
Authors: Law Stephanie
Published: February 2017

This paper aims to further the classification discourse by examining the importance and function of taxonomical structures in private law. The paper begins by considering the extent to which it is possible to develop, establish and maintain a classificatory scheme that constitutes a genuine reflection of the law and more generally, the value in searching for such coherence in law. The discourse developed within the paper is based on an assumption that there is a significant need for taxonomy, both within and beyond the boundaries of national law. This paper will introduce some of the issues which are of particular relevance at both the national level, through a consideration of taxonomy and classification in the development of the civil and the common legal traditions, and the transnational level, through an analysis of the attempts to develop legal taxonomy within the context of European private law (examining in particular, the Draft Common Frame of Reference).
Religious Displays at Public Schools — Courts, Crucifixes and Masters of Identities
Authors: Zhurnalova-Juppunov Maria
Published: February 2017

This contribution compares the judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in the case of Lautsi v. Italy with the decision of the German Federal Constitutional Court in the Classroom Crucifix case. An examination of the way that the courts dealt with the common issues of state neutrality in education, parents' rights to direct the religious education of their children, students' right to religious freedom, as well as of the consistency of the rulings with relevant case law, reveals that the ECtHR's Grand Chamber rendered a judgment open to criticism on a number of grounds. It erroneously conflated state action interfering with the applicant's rights with the exercise of some ‘collective’ rights and liberties. The mis-characterization of the crucifix as a ‘passive symbol’ led the ECtHR to trivialize or disregard the effects of the crucifix on dissenting students and the state neutrality mandate in public education. Finally the judgment is not consistent with the relevant case law of the Court and the application of the doctrine of the margin of appreciation has served to weaken its role as Europe's ‘fundamental rights protector’, seeming to be a means through which the Court has gracefully given in to ‘popular sentiment’. The contribution concludes by offering a ‘pluralist approach’ as a legislative framework for regulating the display of religious symbols in public schools.
Transforming Shields into Swords: The Vebic Judgment, Adequate Judicial Protection Standards and the Emergence of Procedural Heteronomy in EU Law
Authors: Van Cleynenbreugel Pieter
Published: February 2017

The Court of Justice's VEBIC judgment obliges national competition authorities to be involved in appellate judicial proceedings against a decision they adopted, even when these authorities act as first instance judges in adopting those decisions. The judgment significantly diminishes Member States' autonomy in the organization of competition law enforcement. It also affects the scope of the general principle of national procedural autonomy. Rather than simply relying on the classical procedural autonomy test, VEBIC demonstrates a preference for judicial protection standards aimed at assessing the adequateness of national procedural rules. These standards, at first sight, facilitate procedural law convergence, but their potentially unbridled application also enables the unaccountable widening of EU involvement in national procedural systems and ensuing critiques of judicial activism. This article therefore proposes a framework of understanding based on procedural heteronomy to structure the Court's adoption of procedural standards. Procedural heteronomy delineates the Court's potentially new stance in procedural law and structures it within a more general procedural ius commune framework that favours the coexistence of and interaction among EU and national standards of adequate procedure.
Equal Treatment on the Grounds of Movement and Union Choice-of-Law Rules under Article 81 TFEU
Authors: Babayev Rufat
Published: February 2017

Union choice-of-law rules adopted pursuant to Article 81 TFEU aim to promote the exercise of the Treaty free movement rights by providing certainty over the applicable law and predictability of litigation in the context of cross-border contractual, non-contractual or other civil law relationships. At the same time, due to the territorial connecting factors that these choice-of-law rules are based upon, any possible difference in treatment in terms of the applicable law imposed in light of them cannot be excluded. In this respect, it is not clear whether such a difference in treatment could also be contrary to Article 18 TFEU and the Treaty free movement provisions that prohibit discrimination, not only on the grounds of nationality, but also on the grounds of movement.
The Booke of Orders of Assurances: A Civil Law Code in 16th Century London
Authors: Rossi Guido
Published: February 2017

The 16th century was the century of ‘codification of insurance customs in Europe. The passage from oral knowledge to written rules entailed significant changes and favoured major developments. This was particularly the case for England, where an insurance code was written between the late 1570s and the early 1580s. In the 16th century English mercantile customs evolved rapidly, detaching themselves from the Italian influence. At the same time, the increasing importance of Anglo-Dutch trade favoured the assimilation of Dutch customs into the London insurance practice. The fast development of English insurance customs, however, entailed significant uncertainty as to the applicable rules. The rapid growth of an insurance market attracted the attention of several courts, thus further increasing uncertainty. The answer of the mercantile community was to establish a specialized court for insurance in London and to write down their customs. The result was a remarkably elaborate code of insurance, quite a unicum in England. The code sought to strike a balance between continuity and change, consolidating some old usages and borrowing foreign customs, mainly Dutch. The significant influence of Dutch customs was probably favoured by the strong commercial links with the Netherlands. English merchants considered similar rules as a means to further trade. In this respect, the English code attests how economic integration might pave the way to legislative convergence.
The Path of the Former Yugoslav Countries to the European Union: From Integration to Disintegration and Back
Authors: Gagro Sandra Fabijanić , Vukas Budislav
Published: February 2017

The dissolution of the former Yugoslavia took place in a wider context of democratic changes all over Europe. The history of European international relations has been marked by processes of integration, disintegration, divisions, armed conflicts, and so on, caused by various ideological, religious and other reasons. Processes of democratization in many countries led to the organization of the first multiparty elections in multinational countries in Eastern and Middle Europe, which used to be founded on the concept of socialist ideology. At the time of its dissolution, the former Yugoslavia constituted six republics: Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, Montenegro and Serbia, and two autonomous provinces: Kosovo and Vojvodina. The authors indicate the basic disintegration movements in the process of the former Yugoslavia's dissolution, highlighting the viewpoint of international law and the aspects of possible reintegration in some other form of union. In light of the latest political aspirations, the question of (re)integration and/or disintegration of the former Yugoslav republics is understandable. However, taking into account the history and the war-related events of the early 1990s, the following question may be posed: Is that particular reunion a historical and political irony? In search of the answer to the latter question the authors emphasize a legal perspective, which recognizes the state as a dominant subject of international law (but not the only one), and analyse the aspect of its constituting the international community, and its recognition within that community.
The Shaping of Infringement Procedures in European Union Law: The Rights and Safeguards of the Defendant Member State
Authors: Varju Marton
Published: February 2017

The law on the rights and other safeguards available to the defendant Member State in infringement procedures under Articles 258 to 260 TFEU reflects the broader considerations of effective enforcement of EU law. In order to ensure that EU law is followed by the Member States, the EU Commission within its broad discretionary powers may employ different compliance strategies and conduct infringement procedures against the Member States accordingly. As a result, the rights and other safeguards determining the procedural position of the Member State concerned are interpreted to suit the needs of different infringement procedures in their different procedural phases. They perform different functions as dictated by the compliance strategy employed by the Commission and respond to more strategic considerations in the context of compliance in EU law
Private Enforcement of European Competition Law and the Persisting Collective Action Problem
Authors: Van den Bergh Roger
Published: February 2017

Several economic criteria may help policy-makers in choosing between public and private enforcement of competition law. The welfare losses caused by infringements of the cartel prohibition may be better internalized by imposing fines rather than by bringing damages actions. Public agencies may possess information advantages and they may also be able to remedy the difference between the private and social motive to sue. Private enforcement may complement public enforcement by increasing deterrence and guaranteeing compensation. Both direct and indirect buyers should be given standing to bring damages actions. Given the reluctance to introduce US-style class actions, European policy-makers favour collective opt-in actions and representative actions brought by consumer associations. However, the participation rate of opt-in collective actions may remain too low and actions by consumer associations are also vulnerable to principal-agent problems. Moreover, private enforcement of competition law by consumer associations will remain suboptimal if the funding problem is not solved. This paper argues in favour of an optimal mix of public and private enforcement of competition law and suggests some remedies to overcome the above mentioned problems.
The European Commission's Programme for State Aid Modernization
Authors: Quigley Conor
Published: February 2017

The European Commission has set out a modernization programme for state aid. This affects both substantive state aid law and administrative procedures. On substance, while the Commission has no power to change the meaning of state aid, which is derived from Article 107 TFEU and is a matter of law ultimately for the CJEU, it intends to issue a detailed Notice on the notion of aid, in particular in relation to fiscal aid and application of the market investor principle. More proactively, the Commission is revamping the system of assessment and exemption, with a plan to reform the general block exemption and the various guidelines on, for example, environmental protection, research and development and innovation, risk capital and restructuring aid. A more analytical approach, weighing up the economic effects, will be carried out in assessing compatibility. On the procedural side, the main reform is intended to lessen the Commission's administrative workload by reducing the number of complaints that require a Commission decision. Whereas, at present, all complaints must be acted on, regardless of the interest of the complainant, it is intended that henceforth complainants would have to show that they were interested parties within the meaning of the Procedural Regulation. Complaints from other persons would merely be treated as information tools. The Commission also is seeking to introduce new powers for gathering market information from sector participants.
Establishing the Content of Foreign Law: A Comparative Study
Authors: Lalani Shaheeza
Published: February 2017

It is in response to the need for certainty and consistency that systems of regulation and law are created to govern the conduct of people of a community, society, nation or state. With increases in the ease of cross-border movement and activity, as well as global communication, parties and courts are more frequently being exposed to systems of regulation and law that are foreign to them. This, in turn, creates uncertainty regarding not only the ability of national courts to correctly apply foreign law, but also the quality of evidence relating to the content of foreign law. Relevant studies conducted for the Hague Conference on Private International Law and the European Commission have classified states according to their treatment and application of foreign law. The author of this article focuses instead on the most common methods used to ascertain foreign law, and using a much larger sample of states, argues that there is little value in classifying different approaches.
The EU Constitution of Social Governance in an Economic Crisis in Defence of a Transnational Dimension to Social Europe
Authors: Schiek Dagmar
Published: February 2017

Conventional wisdom has it that the EU is unable to promote viable social integration, which contrasts with its commitments to improving working and living conditions and to social values and goals such as solidarity, social protection and social inclusion. This article challenges two different standpoints: on the one hand, competitive neoliberalism demands that the EU focuses on economic integration through legally binding internal market and competition rules even if Member States can only maintain a limited commitment to social inclusion, while authors defending the social models unique to the continent of Europe demand that the EU rescinds some of its established legal principles in order to make breathing space for Member States to maintain market correcting social policies. Both positions convene that there should be no genuine social policy at EU level. This article uses scenarios of widely discussed rulings by the Court of Justice to illustrate that legally enforceable economic integration would prevent most Member States from achieving sustainable health services, labour relations and free university education on the basis of national closure. Since the EU has limited legislative competences to create EU level institutions to balance inequalities, it derives a Constitution of Social Governance from the EU's values, proposing that the Court of Justice develops its jurisprudence into an instrument for challenging European disunion induced by new EU economic governance.
Withdrawal from the European Union: A Typology of Effects
Authors: Nicolaides Phedon
Published: February 2017

This paper examines Article 50 TEU and develops a typology of the possible effects of the withdrawal of a Member State from the EU. Because Article 50 TEU refers to a negotiated, post-exit, relationship between the withdrawing Member State and the Union, the typology focuses on the effects that may be experienced by the withdrawing Member State. Not all of the identified effects are of equal importance and not all of them must necessarily materialize. Their occurrence and magnitude will very much depend on the exit negotiations and the agreed post-exit relationship between that Member State and the EU. The paper also argues that withdrawal is unlikely to lead to the severing of all links with the EU or confer real policy independence to the withdrawing country. Moreover, non-application of EU law will require substantial re-legislation in the withdrawing country. The withdrawing country is unlikely to be insulated from developments in EU law.
EU Environmental Law: Sources, Instruments and Enforcement
Authors: Epiney Astrid
Published: February 2017

The purpose of the present paper – in line with the concept of the whole issue – is to examine some cross-cutting questions of a constitutional nature in EU environmental law (innovative use of sources of EU law, regulatory instruments and aspects of enforcement). Rather than giving an overview of the development of EU environmental law and policy, this paper will focus on these constitutional aspects with the objective of analysing the contribution of EU environmental law and policy to certain constitutional aspects. It will also look at the potential relevance of specific developments in EU environmental law and policy for other fields of EU law and policy and for the process of EU integration in general.
Is Europe Skipping a Step? Exploring the Harmonization of Adr Agreements
Authors: Piers Maud
Published: February 2017

The EU has in the past 15 years displayed particular interest in Alternative Dispute Resolution or ADR. It has issued a number of instruments that set out the procedural framework within which the Member States have ample leeway to regulate ADR. One aspect that has remained under the European radar is the ADR agreement. This article explores how the EU could promote better access to justice by adopting uniform rules on the legal status of an ADR agreement. To that end, it discusses the substantive legal requirements that a valid and binding ADR agreement should meet. It also examines the obligations of the parties to an ADR agreement. Moreover, it confers how these obligations might be enforced. While laying out rules that fit the European legal context, this paper draws on comparative research on ADR in Belgium, England and Germany; on the rules of established ADR institutions such as the International Chamber of Commerce (ICC); and on Article 13 of the UNCITRAL Model Law on International Commercial Conciliation.
Multi-Level Governance through a Constitutional Prism
Authors: Vandenbruwaene Werner
Published: February 2017

This article applies a constitutional lens to the multi-level governance concept as developed in the literature of political science. The approach of this article is twofold: the first part covers the semantics, and tries to disentangle multi-level governance from federalism. I contend that multi-level governance is a better framework to descriptively capture current real-world governance, and is comparatively more suitable than federalism. However, despite the descriptive strength of the theory of multi-level governance, its normative dimension is found wanting. Therefore, the second part addresses constitutional concerns in the multi-level governance debate. A specific analysis of the values and safeguards, the formalization and proceduralization, and the justiciability of multi-level governance traits is made in order to compose a constitutional perspective. This lays down a foundation for the in-depth enquiries of the following articles of this special issue.
‘Europe Clauses’ and Constitutional Strategies in the Face of Multi-Level Governance
Authors: Popelier Patricia
Published: February 2017

This paper is confined to the question how national constitutional systems secure the jurisdictional integrity of both national and European law within national boundaries while at the same time providing legitimacy for European claims of authority within the national legal system. Constitutional strategies are composed along three strands: enabling strategies, impact strategies and three-layered strategies. This paper focuses on enabling strategies, using a comparative analysis to identify efficacy strategies vs legitimacy strategies. It concludes with criteria for the adoption of the ‘best strategy’, based upon considerations of national tradition and sentiments, legitimacy interdependency and the duty to challenge, and a striving for harmonious co-existence.