bluuebunny/crossref_metadata_2025 huggingface dataset:
GCM characteristics explain the majority of uncertainty in projected 21st century terrestrial ecosystem carbon balance
Authors: Ahlström A. , Lindström J. , Rummukainen M. , Smith B. , Uvo C. B.
Published: October 2012

Abstract. One of the largest sources of uncertainties in modelling of the future global climate is the response of the terrestrial carbon cycle. Studies have shown that it is likely that the extant land sink of carbon will weaken in a warming climate. Should this happen, a~larger portion of the annual carbon dioxide emissions will remain in the atmosphere, and further increase the global warming, which in turn may further weaken the land sink. We investigate the potential sensitivity of global terrestrial ecosystem carbon balance to differences in future climate simulated by four general circulation models (GCMs) under three different CO2 concentration scenarios. We find that the response in simulated carbon balance is more influenced by GCMs than CO2 concentration scenarios. Singular Value Decomposition (SVD) analysis of sea surface temperatures (SSTs) reveals differences in the GCMs SST variability leading to decreased tropical ecosystem productivity in two out of four GCMs. We extract parameters describing GCM characteristics by parameterizing a statistical replacement model mimicking the simulated carbon balance results. By sampling two GCM-specific parameters and global temperatures we create 60 new "artificial" GCMs and investigate the extent to which the GCM characteristics may explain the uncertainty in global carbon balance under future radiative forcing. Our analysis suggests that differences among GCMs in the representation of SST variability and ENSO and its effect on precipitation and temperature patterns explains the majority of the uncertainty in the future evolution of global terrestrial ecosystem carbon.
Bulk partitioning the growing season net ecosystem exchange of CO2 in Siberian tundra reveals the seasonality of its carbon sequestration strength
Authors: Runkle B. R. K. , Sachs T. , Wille C. , Pfeiffer E.-M. , Kutzbach L.
Published: October 2012

Abstract. This paper evaluates the relative contribution of light and temperature on net ecosystem CO2 uptake during the 2006 growing season in a~polygonal tundra ecosystem in the Lena River Delta in Northern Siberia (72°22´ N, 126°30´ E). We demonstrate that the timing of warm periods may be an important determinant of the magnitude of the ecosystem's carbon sink function, as they drive temperature-induced changes in respiration. Hot spells during the early portion of the growing season are shown to be more influential in creating mid-day surface-to-atmosphere net ecosystem CO2 exchange fluxes than those occurring later in the season. In this work we also develop and present a bulk flux partition model to better account for tundra plant physiology and the specific light conditions of the arctic region that preclude the successful use of traditional partition methods that derive a respiration-temperature relationship from all night-time data. Night-time, growing season measurements are rare during the arctic summer, however, so the new method allows for temporal variation in the parameters describing both ecosystem respiration and gross uptake by fitting both processes at the same time. Much of the apparent temperature sensitivity of respiration seen in the traditional partition method is revealed in the new method to reflect seasonal changes in basal respiration rates. Understanding and quantifying the flux partition is an essential precursor to describing links between assimilation and respiration at different time scales, as it allows a more confident evaluation of measured net exchange over a broader range of environmental conditions. The growing season CO2 sink estimated by this study is similar to those reported previously for this site, and is substantial enough to withstand the long, low-level respiratory CO2 release during the rest of the year to maintain the site's CO2 sink function on an annual basis.
Structural evolution of the VMS-hosting Kristineberg area, Sweden – constraints from structural analysis and 3-D-modelling
Authors: Skyttä P. , Bauer T. , Hermansson T. , Dehghannejad M. , Juhlin C. , García M. , Hübert J. , Weihed P.
Published: October 2012

Abstract. Structural mapping and 3-D-modelling with constraints from magnetotelluric (MT) and reflection seismic investigations have been used to provide a geological synthesis of the geometrically complex Kristineberg area in the western part of the Palaeoproterozoic Skellefte district. The results indicate that, like the south-eastern parts of the Skellefte district, the area was subjected to SSE-NNW transpressional deformation at around 1.87 Ga. The contrasting structural geometries between the Kristineberg and the central Skellefte district areas may be attributed to the termination and splaying of a major ESE-WNW-striking high-strain zone into several branches in the northern part of the Kristineberg area. The transpressional structural signature was preferentially developed within the southern of the two antiformal structures of the area, "the Southern antiform", which exposes the deepest cut through the crust and hosts all the economic volcanogenic massive sulphides (VMS) deposits of the area. Partitioning of the SSE-NNW transpression into N–S and E–W components led to formation of a characteristic "flat-steep-flat" geometry defining a highly non-cylindrical hinge of for the Southern antiform. Recognition of the transpressional structural signatures including the "flat-steep-flat" geometry and the distinct pattern of sub-horizontal E–W trending to moderately SW-plunging mineral lineations in the deeper crustal parts of the Kristineberg area is of significance for VMS exploration in both near mine and regional scales. The 3-D-model illustrating the outcomes of this study is available as a 3-D-PDF document through the publication website.
One Law, Two Competitions: An Enquiry into the Contradictions of Free Movement Law
Authors: Saydé Alexandre
Published: October 2012

The long-established contradictions of free movement law are caused by the implicit reference to two contradictory paradigms of economic integration. The first paradigm seeks to avoid the competition among private businesses being distorted by national regulations, therefore aiming at the creation of a ‘level playing field’ (regulatory neutrality paradigm). The second paradigm seeks to ensure the proper functioning of the process of competition among Member States, and accordingly aims at maximising the opportunities for ‘regulatory arbitrage’ (regulatory competition paradigm). In more detail, the tension between those two paradigms of economic integration results in three central nodes of internal market law: the eventuality of a positive harmonisation, the negative harmonisation conundrum, and the regulatory mobility dilemma. In sum, one (free movement) law is assigned the contradictory mission of ensuring the proper functioning of two competitive processes: the competition among private businesses (regulatory neutrality) and among Member States (regulatory competition).
Years an EU Lawyer—Apologia Pro Vita Sua Or EU Law—A 40-Year Journey and Still Motoring
Authors: Dashwood Alan
Published: October 2012

This lecture offers a justification of the choice of a career as an EU lawyer, which was made at the beginning of the 1970s. Its 40-year perspective covers a variety of themes, beginning with the political aims and values that underpin the European project. This is followed by a section on the development of the Treaty and Union structure, from the three original Communities to the Union of the Lisbon Treaty. Other themes are: the progressive enlargement of the Union’s membership, including the legal challenges facing new Member States; the expansion of Union competences, from the original objective of establishing a general common market; and, finally, the Union’s functional constitution, described as the chef d’oeuvre of the Court of Justice.
Exit Taxation as an Obstacle to Corporate Emigration from the Spectre of EU Tax Law
Authors: Panayi Christiana Hji
Published: October 2012

In this chapter I examine how the cross-border movement of companies may be affected by some tax rules and I consider the impact of EU law on such rules. The examination is in the context of the case law of the Court of Justice and the limited EU direct tax legislation. I assess how these affect the cross-border movement of companies as well as their investment strategies. I conclude by considering whether this is a satisfactory way of dealing with the issues. The contents of this chapter are based on materials available up to 1st March 2011.
Multi-faceted Single Legal Personality and a Hidden Horizontal Pillar: EU External Relations Post-Lisbon
Authors: Govaere Inge
Published: October 2012

The Lisbon Treaty has fundamentally revised the external relations of the EU in pursuit of more visibility, coherence and consistency. The EU is, for instance, given a single legal personality, the pillar structure is (formally) abolished, new functions are created to reinforce its external representation and external policies appear to be streamlined. But is there more to it than meets the eye? A critical legal assessment is given of the major Treaty modifications relating to the EU external relations whilst addressing two underlying issues. First it is questioned whether the Member States have really given up their traditional reluctance to share fully the international scene with the EU. It is argued that the Lisbon Treaty in fact means to redress the balance in favour of intergovernmentalism under CFSP. A second crucial and related issue links to the silent dialogue with the CJEU to be discerned in the Lisbon Treaty. It wavers between the codification of important case law, such as Kadi, and attempts at containing or even reversing case law which was more prejudicial to the Member States’ interests, such as the Ecowas judgment. In so doing the Lisbon Treaty again raises interesting yet complex legal questions which will most likely necessitate further clarification through case law.
Criminal Justice in the Post-Lisbon Era
Authors: Corstens Geert
Published: October 2012

Having briefly traced the history of EU criminal law, this chapter first examines the new rules governing the competency of the EU in criminal law matters deriving from the Lisbon Treaty. Europol and Eurojust, the EU institutions that have been created with a view to fighting trans-border crime are examined, and the pros and cons of a possible further institution, the European Public Prosecutor are discussed. A final section examines the impact of the EU Charter, and the need to establish in this area an order of precedence between the EU Charter and the European Convention on Human Rights.
Varieties of Capitalism and the Limits of European Economic Integration
Authors: Snell Jukka
Published: October 2012

This chapter considers European economic integration from the perspective of varieties of capitalism. It notes the main threats that integration potentially entails both for liberal and coordinated market economies, and assesses the likelihood of damage to the different models, in particular following the Lisbon Treaty. It is argued descriptively that both types of capitalism can continue to coexist in the European Union, and normatively that it is vital that the integration project is managed in a way that does not fundamentally endanger them.
Posted Workers in Europe from a Private International Law Perspective
Authors: Merrett Louise
Published: October 2012

Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
Tipping the Balance: International Courts and the Construction of International and Domestic Politics
Authors: Alter Karen J
Published: October 2012

The proponents of international courts (ICs) expect that creating formal legal institutions will help to increase respect for international law. International relations scholars question such claims, since ICs have no tools to compel state compliance. Such views are premised on the notion that states have unique preferences that ICs must satisfy in order to be effective. The tipping point argument is premised on the notion that within each state are actors with numerous conflicting preferences. ICs can act as tipping point actors, building and giving resources to compliance constituencies—coalitions of actors within and outside of states—that favour policies that happen to also be congruent with international law.
The Rebirth of the EU’s Charter of Fundamental Rights
Authors: Peers Steve
Published: October 2012

Since the conferral of binding legal effect on the EU’s Charter of Fundamental Rights with the entry into force of the Treaty of Lisbon, the Court of Justice has taken an active role in developing the Charter as the leading source of human rights rules in the EU legal order. While the Court has begun to clarify some important points relating to the Charter, a number of significant issues still need to be addressed.
Ploughing Their Own Furrow: Subnational Regions and the Regulation of GM Crop Cultivation
Authors: Hunt Jo
Published: October 2012

This chapter provides a case study in regulatory multi-level governance within the European Union, with a substantive focus on the regime in place for the authorisation of cultivation of genetically modified crops. Whilst presenting a detailed account of the supranational level regime, it seeks explicitly to write in the subnational, regional dimension to our accounts of policy evolution in this highly controversial area. The chapter considers regions’ ‘upstream’ engagement in the policy processes at EU level, through judicial challenge to EU measures as well as attempts to influence supranational level legislative reform, which is currently ongoing. In this regard, it looks both at the role of regions within this process, and within the terms of the resultant legislation. In addition, the chapter considers regions’ ‘downstream’ engagement, in their implementation and application of the existing rules. As a number of regions have sought to declare themselves GM-free zones, this chapter explores the legality of such local and regional GM crop cultivation bans, as a matter of EU law. In short, the chapter contributes further to our understandings of the place held by regions within the EU system of governance demonstrating how regions may themselves be both legal and political actors of significance within the EU order, whose interests are not always congruent with that of their Member State.
Regulatory Acts within Article 263(4) TFEU–A Dissonant Extension ofLocus Standifor Private Applicants
Authors: Werkmeister Christoph , Pötters Stephan , Traut Johannes
Published: October 2012

The Treaty of Lisbon introduced an extension oflocus standifor private claimants by amending Article 263(4) TFEU. The provision contains a new third variant for actions against ‘regulatory acts which do not entail implementing measures’. However, it is far from clear to what extent the existing framework has actually been reformed. The CJEU has not yet had the opportunity to define the term ‘regulatory act’. In our view, this term has to be interpreted narrowly. It merely encompasses non-legislative acts enacted under Articles 290 and 291 TFEU. Those subordinate legal acts are characterised by a lack of democratic legitimacy, which justifies a lower threshold for judicial review. Hence, the possibilities for an action for annulment remain limited for private applicants. Effective remedies against legal acts of EU law are provided primarily by the courts of the Member States. The tentative reforms brought by the Treaty of Lisbon did not change the decentralised structure of the EU’s judicial system.
The Structure of European Union Law
Authors: Eleftheriadis Pavlos
Published: October 2012

Is the general structure of EU law a matter determined by its own constitutional principles? Many assume that this must be the case, because this is what we regularly expect from any national order of constitutional law. A more careful look shows that the analogy does not work. There is no single set of constitutional principles that determines the application of EU law by the Member States. Each State has its own principles. This clear division of labour between EU and national law poses a serious theoretical problem to those presenting EU law as a legal system directly analogous to that of a constitutional order. This chapter argues that a more careful study shows that the structure of EU law is very much like the structure of international law: dualist, not monist. Nevertheless, the dualist structure of EU law does not in any sense reduce its authority or legitimacy.
Freedom of Commercial Expression and Public Health Protection in Europe
Authors: Garde Amandine
Published: October 2012

This chapter focuses on the extent to which public health has been relied upon by the EU legislature or by Member States of the European Union to limit the freedom of commercial operators to promote their goods and services. First, it discusses why courts in the United States and in Europe have ruled that the freedom of commercial operators to advertise their goods and services should be protected, in light of the fundamental role advertising plays in a liberal market economy. It shows that freedom of commercial expression has been made conditional upon the disclosure of sufficient and reliable information to consumers, thus reflecting a model of consumer protection based on the well-informed and reasonably circumspect consumer. Secondly, it addresses the more controversial question of the extent to which public health may be invoked as an overriding requirement of public interest to curtail the right of commercial operators to promote their goods and services. The approach of the Court of Justice is compared with that taken by the US Supreme Court. This comparative approach highlights the differences between the two: the former is very reluctant to exercise its review powers, while the latter has made it excessively difficult for public authorities to impose any meaningful advertising restrictions. It is argued that neither court has been able to strike a suitable balance between, one the one hand, the need to review the validity of restrictions imposed by public authorities on commercial speech to ensure a high level of public health protection and, one the other hand, the need to ensure that courts do not substitute their assessment to that of the legislature in exercising their judicial review powers. A more balanced approach is required to ensure the adequate protection of consumer health.
From Washington with Love—Investor–State Arbitration and the Jurisdictional Monopoly of the Court of Justice of the European Union
Authors: Strik Philip
Published: October 2012

While investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.
The Rationale of State Aid Control: A Return to Orthodoxy
Authors: Biondi Andrea
Published: October 2012

The prevailing view on the rationale for State aid control is that it should be the same as, or very similar to, the rationale for competition control. It is certainly true that State aid distorts competition, as the economic definition presupposes. However, there is a subtle difference between the two, and we should return to orthodoxy in our analysis of these two concepts. The rational for State aid control is in fact to be found in the logic of the internal market principles. The tools to be used in analysing it are not identical to those used in the antitrust context. Rather, the free movement perspective should be adopted, and most problems in the arena of State aid can be better understood when approached from that perspective. It is also true that State aid procedures can be used to monitor compliance with free movement rules, and so the functional identity between the two sets of provisions is confirmed. State aid is a regulatory restriction on freedom of movement, and State aid control is an essential part of the functioning of the internal market, and so it makes sense to treat it in the same way as any other regulatory measure which has such an effect.
The European Union and the Globalisation of Criminal Law
Authors: Mitsilegas Valsamis
Published: October 2012

In the new post-Cold War security era, there is a perception that the nature of cross-border security threats has changed. The need to respond to these new threats has led to a proliferation of multilateral international and regional treaties in this area, as well as unilateral demands made by the United States post-9/11. We have, then, seen a process of globalisation of criminal law, a field traditionally linked to State sovereignty. This chapter examines, first, EU action with regard to UN multilateral conventions and the impact of those conventions on internal EU law, as well as the impact of EU action within the framework of the regional treaties of the Council of Europe; secondly, the interrelationship between Union law and the global production of norms in criminal matters by the UN Security Council and by the Financial Action Task Force; thirdly, bilateral cooperation between the EU and the US, in particular in connection with the transfer of Passenger Name Records data; fourthly, the question of compliance by the EU in this area, in both the internal and the external context; and, fifthly, the Court of Justice’s approach to the protection of fundamental rights when global criminal law is engaged. The EU has managed to take centre stage in international developments in the field of global criminal law through a clear commitment to multilateral negotiations as well as a clear political will to implement at the Union level norms agreed internationally without a high degree of transparency. The Court of Justice has also been reluctant to overturn Union security decisions in the name of fundamental rights. The coming into force of the Lisbon Treaty will eliminate some complexity in this area, but not all, and it still remains to be seen whether in the process of globalisation of criminal law the European values proclaimed in Article 2 of the new EU Treaty will be promoted or compromised.
Trust and EU Law and Governance
Authors: Maher Imelda
Published: October 2012

The impetus for this chapter is the extraordinary difficulties surrounding the adoption of the Lisbon Treaty. It aims to provide a framework within which to explore trust in EU law. The question of trust has become even more significant since the adoption of the Lisbon Treaty with the emergence of the fiscal crisis in Greece and in the wider eurozone. This chapter initially seeks to locate the question of trust within the much-discussed notion of the democratic deficit in the EU, drawing on the work of Snell. It argues that the question of democratic deficit raises questions about trust in the EU, and that institutionalised distrust is what is required in order to secure appropriate trust in EU law and governance. It then examines the nature of trust before turning to two major crises of distrust in the EU: the Irish referenda on the Lisbon Treaty and the ongoing difficulties presented to the eurozone of the indebtedness of some of its members.
Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments
Authors: Tridimas Takis
Published: October 2012

The judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.
The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy?
Authors: Douglas-Scott Sionaidh
Published: October 2012

The EU’s ‘Area of Freedom, Security and Justice’ is a hugely important area covering criminal law, terrorism, immigration, visa control and civil justice, as well as the massive area of free movement of persons. What is clear, however, is that measures which fall within its scope have the capacity to alienate EU citizens rather than making them feel aware of their European identity in a positive sense. This chapter examines some of the measures taken by the EU in this broad field which cause particular concern, namely a lack of democratic and legal accountability as well as inadequate regard to human rights. It focuses in particular on two areas in which human rights protection in the EU has been undermined. The first is in the field of data protection. The second is in the field of suspects’ rights, particularly in the context of the European arrest warrant. The chapter concludes by considering why so many restrictions on freedom have been allowed to come about and suggests some possible solutions.
Precedent and Judicial Lawmaking in Supreme Courts: The Court of Justice Compared to the US Supreme Court and the French Cour de Cassation
Authors: Komarek Jan
Published: October 2012

Why is it so difficult to qualify the Court of Justice’s decisions as ‘sources of law?’ Does the Court of Justice only ‘interpret’ law, or does it ‘make’ it? To what extent should its pronouncements be taken into account by others? This chapter shows how a particular theoretical approach to precedent and judicial lawmaking shapes the answers to the queries mentioned above. It examines a set of interrelated questions concerning precedent and judicial lawmaking by the US Supreme Court and the French Cour de cassation and then applies these findings to the Court of Justice. The questions are: first, in what sense is it said that these courts make law; secondly, who is bound by their pronouncements; and, thirdly, how does this binding force actually work? It is suggested that while the US and French systems have found ways in which to reconcile judicial lawmaking with the basic premises of their constitutional and political systems, especially by allowing other actors to respond to judicial lawmaking (in the particular sense of the word ‘lawmaking’ used in these two systems), the EU system is still waiting for a satisfactory answer.
An Overview of Regulatory Innovation in the European Union
Authors: van Calster Geert
Published: October 2012

This chapter reviews the regulatory innovation process in the European Union, with a focus on the environmental sector. It examines the EU documents on regulation and, in particular, the ‘eight pillars of European governance’ listed by the European Commission in its follow-up to the 2001 White Paper on European Governance, as a useful means of categorising the practical consequences which the European Union attaches to the different implications of the governance debate in the EU. It goes on to summarise the initiatives on regulatory innovation as kick-started by the White Paper on Governance, and to map the current state of each of these initiatives. It concludes that no fundamental reform is required, but rather only a slim number of targeted remedies; the only real solution to the regulatory fog is acceptance and deregulation.
Developments (and Non-Developments) in the Harmonisation of EU Intellectual Property Law
Authors: Seville Catherine
Published: October 2012

This chapter begins by considering the challenges posed to the harmonisation of intellectual property law at the European level by the very different ways in which the law of intellectual property is viewed across Europe. It then goes on to review the various global and historical initiatives in the arena of intellectual property law harmonisation before running through the different areas of intellectual property law—trade marks, designs, copyright and patents—and examining the ways in which each of these has been dealt with at the European level, both by the European Union and by other Europe-wide bodies. In effect, the way in which intellectual property law has been addressed by the European Union represents a microcosm of the various possible approaches to harmonisation. As regards the prospect of future harmonisation of intellectual property law by the European Union, it is hoped that a wide and wise view of the issues will be taken, in order that public confidence in the Community’s intellectual property regime may be both justified and strengthened.
Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision inKadi and Al Barakaat
Authors: Murkens Jo Eric Khushal
Published: October 2012

This chapter examines the recent decision by the European Court of Justice inKadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgment, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.
The Role of Exploitation in Abuse under Article 82 EC
Authors: Akman Pinar
Published: October 2012

There is a distinction between exclusionary and exploitative abuse. An exploitative abuse directly harms customers whilst an exclusionary abuse may indirectly harm consumers. Whilst the EC Commission expresses the objective of Article 82 EC as enhancing consumer welfare, its review of the application of Article 82 EC and its 2008 Guidance on enforcement priorities is limited to exclusionary abuses and excludes consideration of exploitative abuses. This chapter argues that exploitation—direct harm to the customer—is a necessary element of an Article 82 EC infringement. However, mere exploitation does not demonstrate harm to competition and without the latter exploitation should not be prohibited by Article 82 EC. It thus advocates a fusion of the exclusionary and exploitative analysis.
Justice in Haste, Justice Denied? The European Court of Justice and the Area of Freedom, Security and Justice
Authors: Rosas Allan
Published: October 2012

This chapter considers the ECJ procedure and, in particular, the length of time required for cases to be heard, especially in proceedings pertaining to the Area of Freedom, Security and Justice, an area in which the saying ‘justice delayed, justice denied’ has particular force. It examines in particular the new urgent procedure, conceived in order to enable the Court to decide a case falling under the Area of Freedom, Security and Justice within an expedited time-frame. It concludes that, while undue haste should be avoided, lengthy time-frames for court proceedings are more often than not a sign of poor case management. The Area of Freedom, Security and Justice provides a special incentive for the ECJ to be vigilant as regards the length of court proceedings.
European Human Rights and Constitution-building in a Post-conflict Society: the Case of Bosnia and Herzegovina
Authors: Feldman David
Published: October 2012

The constitution of Bosnia and Herzegovina (henceforth ‘BiH’) was born out of conflict. The country, like much of the Balkan region, had been subject to waves of invasion, nationalist tension and foreign domination for many centuries. The Ottoman Empire, with a complex system of public and private law influenced by Islamic law, had been followed by the Austro-Hungarian Empire, overlaying the legal system with the tradition of the Code Civil. Before the Ottoman period the Slav population had divided between adherents to the Church of Rome and followers of the Eastern Orthodox Church. Under the Ottomans a group of Slavs had converted to Islam, further fracturing the religious coherence of the region. During the nineteenth and early twentieth centuries the pan-Slavist movement had sought to establish a Serb national homeland for its people. When Princip assassinated the Archduke Ferdinand of Austria in Sarajevo in 1914, the aim was to establish a Serb state free of imperial domination.
The Interface of EC Competition Law and Intellectual Property Rights: the Essential and the Creative
Authors: Maher Imelda
Published: October 2012

This article uses the issue of compulsory licensing of copyright to explore the relationship between intellectual property law (specifically copyright law) and competition law in the EU. It takes as its starting position the proposition that competition law is the ultimate restraint on the monopoly potential of intellectual property with intellectual property rights (IPR) located in competition law. However, it argues that it is too simplistic to cast the approach of the European Court of Justice (ECJ) in theIMScase purely as one of competition law being allowed to trump copyright. Instead, it sees the judgment as an example of doctrinal compromise for both legal subsystems with competition law placing limits on the invocation of copyright as the basis for a refusal to deal, while suggesting a remedy in the form of compulsory licensing which runs contrary to its conceptual roots in private law and notions of freedom of contract.
The Effectiveness of Europe’s Economic and ‘Soft’ Power Instruments in its Relations with the State of Israel
Authors: Harpaz Guy
Published: October 2012

The european integration programme is a unique and ambitious attempt on the part of numerous nations, with a long history of armed conflicts and diverse cultural, linguistic, legal and economic traditions, to become integrated under a ‘new legal order’. Indeed, the European Union (‘EU’) can look back with much satisfaction on its record of transforming a large part of Europe, once afflicted by wars, nationalist divisions, Nazism and Fascism, into a region where peace, political moderation and protection of human rights prevail. Now, the EU wishes to externalise its success. As Robert Kagan has argued inPower and Weakness, ‘the transmission of the European miracle to the rest of the world has become Europe’s newmission civilisatrice. Just as Americans have always believed that they had discovered the secret to human happiness and wished to export it to the rest of the world, so the Europeans have a new mission born of their own discovery of perpetual peace’.
Harmonisation of European Contract Law: Citizenship, Diversity and Effectiveness
Authors: Collins Hugh
Published: October 2012

Proposals from the European Commission to work towards greater harmonisation of contract law, and indeed private law more generally, have been described in terms that apparently distance these plans from the introduction of a code civil europa. Nevertheless, the programme for developing ‘non-sector-specific measures’ into a ‘common frame of reference’ constitutes in its fundamentals and aspirations the ambition to create a European law of contract. And the method for the construction of this code replicates the process devising the great European codes of the nineteenth century: a painstaking scholarly endeavour to find consistency and coherence in the divergent national private law systems, except that no legislative process is foreseen.
Competition Law and Intellectual Property Rights: Is the Property Rights’ Approach Right?
Authors: Lianos Ioannis
Published: October 2012

The intersection between competition law and intellectual property has been a contentious issue since the very beginnings of European Communities (EC) competition law. Both intellectual property and competition law pursue the aim of enhancing economic welfare and innovation, but their direct objectives seem to be in conflict. Whereas intellectual property focuses on the reward of inventive effort and the inventor’s incentives to innovate by conferring an exclusive right on the use of the invention, competition law emphasises the dissemination of innovation by ensuring diffusion and access.
The Public/Private Divide in Secondary Community Law: a Footnote to the European Economic Constitution
Authors: Schepel Harm
Published: October 2012

This contribution is concerned with the demarcation of the public sphere in two different regimes of secondary European economic law: the rules on public procurement on the one hand and those on VAT on the other. In both, the pivotal concept is that of ‘bodies governed by public law’. In the first, the consequences of being classified as a public body are onerous; in the latter, they are very advantageous. In the first, classification as a public body requires the institution in question to comply with the legislation on public procurement; in the latter, it will leave the body outside the reach of Community law. It is perhaps no surprise, then, that the Court has interpreted the concept of a ‘body governed by public law’ very differently in the different regimes. In that light, this comparative analysis may seem fanciful at best.
The Constitution, The State and the European Union
Authors: Barber NW
Published: October 2012

Is the european Union a state? Does it possess a constitution? And, accompanying these conundrums, if the Union lacks these characteristics, should we seek to confer them on it? There are some questions which are easier to answer than to understand, and questions about the statehood and constitution of the Union are of this nature. Pragmatic scholars have tended to dispose of such matters briskly; confident that their answers were correct, even if unsure of the basis for their confidence. The decision to entitle the product of the European Convention a ‘constitution’ has given these questions new significance. A small portion, at the very least, of the confused debate surrounding the Draft Constitution has been caused by the murky relationship between constitutions and states, and the implications that flow from statehood.
The Language or Languages of Consumer Contracts
Authors: Whittaker Simon
Published: October 2012

Does european community law make any requirement as to the language in which the terms of consumer contracts are to be expressed?

At the outset, I need to explain that the significance of this question (and its answer) will differ according to what is meant by the word ‘language’ itself. A first meaning is found where one refers to English, French, or Chinese as a ‘language’, that is, to quote theOxford English Dictionary, ‘a system of communication used by a particular country or community’. A second meaning of ‘language’, again as explained by theOxford English Dictionary, refers to ‘the manner or style of a piece of writing or speech’; so, for example, one may describe a piece of prose as being written in simple or elaborate, verbose or laconic, language. To avoid confusion in the following discussion, I shall refer to these two different significances as ‘language type’ and ‘language style’.
Democracy, Transparency and the Apparent Demise of the Treaty Establishing a Constitution for Europe
Authors: Saunders Cheryl
Published: October 2012

The failure of any constitution-making process is deeply disappointing for some and a source of satisfaction for others. The satisfaction of the latter may be short, or at least not long-lived, however, if it subsequently turns out that the changes were necessary, or even demonstrably useful. Initial failure in a constitutional project is relatively common, for reasons that range from the difficulty of the process to the novelty and perceived significance of the issues at stake. Experience suggests, however, that, at least where the rationale for the constitutional proposals was sufficiently soundly based, failure may not be the end of the story. It follows that it makes sense to take stock after such an event: to identify what is lost that was of value; to determine what, if anything, might be improved, if another constitutional moment presents itself; and to consider whether constitutionalisation should be attempted again, or whether other mechanisms can be used instead.
Derogating from the Free Movement of Persons: When can EU Citizens be Deported?
Authors: Shuibhne Niamh Nic
Published: October 2012

Ten years ago, the Bayerisches Landessozialgericht referred four questions to the Court of Justice for a preliminary ruling; the resulting judgment on María Martínez Sala’s entitlement to a child-raising allowance finally yanked the concept of Union citizenship from its sluggish hinterland in the EC Treaty and launched the Court and the Community legislature on a mission—to uncover the substantive content and scope of citizenship, and to realise its potential as an autonomous rights-giving force. The intervening decade has seen enthusiastic, if not always coherent, progression of this vocation, and thereby renewed animation of Community law on the free movement of persons. Much work in this field seeks to plot the evolving rights for EU citizens; but what about the position of the Member States? Their capacity to determine and manage their own immigration rules had already been eroded by ‘traditional’ Community law on workers, establishment and services.
The Boundaries of Sovereignty: The ECJ’s Controversial Role Applying Internal Market Law to Direct Tax Measures
Authors: Kingston Suzanne
Published: October 2012

It is safe to say that any description of tax as ‘exciting’ tends to be greeted with at least mild scepticism by non-tax specialists. Yet the ECJ’s role applying the Treaty free movement rules in the direct tax sphere is one of the most exciting, controversial and seemingly intractable areas of ECJ competence at present. This paper seeks to demonstrate why no Community lawyer should miss out on the drama unfolding in Luxembourg.
Trusting Judges to Deliver Changes: Italy, the EU and Labour Law
Authors: Sciarra Silvana
Published: October 2012

The title of this paper embraces three concepts which will be used as paths to reach a destination. The destination is Italy, taken as an example of an active promoter of European integration, even when facing difficulties in complying with its obligations under the EC Treaty.

The first path leads towards judicial intervention, seen as a major tool for making changes within a national legal system. Some examples (section III) concern the scrutiny that the ECJ operates, when prompted by the Commission, acting under Article 88(2) EC. Other examples (sections IV and V) are related to the open dialogue national judges engage in with the ECJ, when they start preliminary references under Article 234 EC.
Fiscal State Aid: On Tax Exemptions and Reimbursement of Taxes
Authors: Werner Philipp
Published: October 2012

Fiscal state aid is an important aspect of state aid law. Aid granted though fiscal measures accounted for more than 40 per cent of aid granted in 2003–5. According to a recent study, allegations that fiscal measures constitute illegal aid account for more than 50 per cent of state aid cases before national courts. The European Commission and European as well as national courts are thus increasingly being called upon to consider the extent to which state aid rules apply to fiscal measures.
Untying the Market Access Knot: Advertising Restrictions and the Free Movement of Goods and Services
Authors: Doukas Dimitrios
Published: October 2012

More than a dozen years since theKeckjudgment, its effect of breaking the dogmatic convergence between the free movement of goods and that of services, already established in the case law of the ECJ by the early 1990s, cannot be underestimated. As is well known, this convergence primarily relied on such a broad interpretation of the scope of Articles 28 and 49 EC as to include any obstacles to intra-Community trade arising from measures applying beyond discrimination unless justified. The basic divergence introduced byKeckinto the Court’s approach to the free movement provisions on goods and services can best be illustrated by the case law reviewing measures relating to advertising and other marketing methods. This paper will draw on a broad definition of advertising, which will include any commercial communication, ie any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person exercising a commercial, industrial or other professional activity.
Labour Rights as Human Rights: Implications for Employers’ Free Movement in an Enlarged European Union
Authors: Novitz Tonia
Published: October 2012

This chapter considers the legal status of labour rights as human rights within the European Union (EU) and the implications that this may have for free movement provisions under European Community (EC) law. This is not by any means a new subject for analysis and reflection, but has been of particular concern since the fifth enlargement of the EU which commenced in 2004. It is in this context that we have witnessed significant litigation before the European Court of Justice concerning the scope of the right to strike, and widespread protest concerning the adoption of a new Directive on Services in the Internal Market.