bluuebunny/crossref_metadata_2025 huggingface dataset:
Consumer Sales Directive 1999/44/EC — The Impact on English Law
Authors: Watterson Stephen
Published: April 2022

English law already lays down a number of minimum quality standards for goods by the Sale of Goods Act 1979 which substantially resemble those found in the Directive 1999/44/EC. The more interesting developments concern the remedies available to purchasers of non-conforming goods. In particular, the Directive requires new legal rights to free repair or replacement, and may well require a purchaser's established right to reject goods to be more enduring than is now the case. Nonetheless, the Directive may be a double-edged sword in this respect. If the Directive's remedial regime is adopted with all of its limitations, the overall result could be a reduction of the rights of consumer buyers. Implementing the Directive will not be an easy task. In the short-term, a shortage of parliamentary time is likely to lead to implementation by Regulation in parallel to existing national rules. In the long-term, however, satisfactory consolidation of national and European rules governing consumer sales, and possible implementation of the UN Convention on the International Sale of Goods, will raise the question whether the UK should finally enact wholly separate consumer and commercial sales laws.
European Sales Law — Reform and Adoption of International Models in German Sales Law
Authors: Grundmann Stefan
Published: April 2022

The sales directive will lead to the most important law reform in German contract law since the entering into force of the German Civil Code in 1900. This is true, first, for sales law and the law of limitation. Here, the most important problems were due to the fact that defects in quality and defects in the right confered were treated differently, that there was a multitude of grossly diverging limitation periods (from six months to thirty years) and that phenomena like the delivery of slightly different goods (aliud) or of a slightly diverging quantity (minus) were again treated differently. With respect to these differentiations, the directive will lead to an important simplification of German sales law. One major topic not treated by the directive will change as well: So far, in most cases sellers (and only sellers) could not be sued for damages in case of pure negligence but only of fraud. This is anachronistic and will change. One striking feature of new German sales law is that it applies to all sales with only very few specific rules for consumer sales. This is however due to the fact that also the (consumer) sales directive and the Vienna Convention on international (commercial) sales are very similar in most points. Apart from sales law, it is still likely that the reform of German contract law will extend, second, to two more fields: The general law of breach of contract will probably be reformed, the preparatory work by the so-called Schuldrechtskommission extended over two decades. And probably the different acts on consumer law will be integrated into the Civil Code. This relates mainly to door step selling, distance selling, consumer credits and also unfair contract terms, although the latter are not a problem only of consumer contracts under German law. German academia was taken in surprise by the pace of reform both on Community level and by the German legislature. It started to collaborate in the legislative process only lately and large parts of it still rather see the disadvantages of new models than the chances of law reform. This casts some doubts over the parts of the reform which are not imposed by the directive.
Vorlagebeschluss of June 29, 1999 — The Protection of "Vulnerable Sureties" as to German, French, Belgian, Dutch, English and Scottish Law
Authors: Lebon Caroline
Published: April 2022

The standard terms of the bank, where a man got a loan for the restoration of the matrimonial home (where he also had his architect's firm) he was the sole proprietor of, obliged the spouse to grant security for the loan. The architect's wife made no objections. At the time of the conclusion of the whole transaction, she was 32, mother of a young child, owed two already several times charged pieces of land and got only a low income as employee in the bureau of her husband. After several delays in payments on the loan, the bank terminated the loan and called upon the wife as guarantee as the man was not able to repay.

The editors of this journal made an interesting choice by taking the Vorlagebeschluss from the 29th June 1999 as case to be annotated. This not only because of the - at least - strange end of the affair, but mostly because of the style and form of the decision itself. The decision provides, like a real textbook, a complete overview of the different opinions concerning the Sittenwidrigkeit of contracts of suretyship of the IXth and the XIth Civil Chambers of the Bundesgerichtshof.

After discussing the German Law, it will be investigated how (vulnerable) sureties can try to avoid liability under French, Belgian, Dutch, English and Scottish Law.

The present standpoint in France upon this matter stems from the so-called Macron-case of the Court de Cassation of the 17th June 1997, which introduced the delictual libaility of banks that demanded "manifest disproportionate" sureties. Since then, French sureties are better protected than at the time when it was only possible to obtain annulment of the contract of suretyship for a defect of consent.

In Belgium sureties still have to take the hard way and proof a defect of consent in order to get relief of a null contract. It will be considered therefore if sureties cannot profit from the latest case law-evolution on the contractors' duties in the precontractual stage.
United States Antitrust Developments in the New Millennium
Authors: Davidow Joel
Published: April 2022

US antitrust in the new millennium has been characterised both by successes and challenges. The successes include additional exposure of major international cartels, exposure of foreign corporate officials to US prison sentences for cartel activity, further adoption or strengthening of foreign antitrust systems, and deeper co-operation in regard to anti-cartel and merger control enforcement. Merger relief has become quite strict, with firm insistence on fix it first solutions that are quite certain to happen. Challenges include trying to win the Microsoft case on appeal, learning how to deal with private actions involving damages stemming from worldwide cartels and curbing the runaway proliferation of merger control systems that lay too many burdens on largely unobjectionable but highly international transactions. The new administration will undoubtedly continue many of the international initiatives of its predecessor, but is likely to be more sceptical of populist antitrust approaches such as vertical cases or predatory practice monopolisation cases.
Broadening the Vision of Trade Liberalisation; International Competition Law and the WTO
Authors: Mitchell Andrew D.
Published: April 2022

This article begins by examining competition law and trade liberalisation as promoted by international trade law, and the common policies that inform them. It goes on to consider the points of intersection between competition and trade law, highlighting the problems arising from the current system of national competition laws in the context of trade liberalisation. It suggests that international competition law could solve some of these problems, although previous attempts to implement such a regime have proved unsuccessful on the whole. It then considers the possibility of creating international competition laws within the World Trade Organization (WTO) framework, which already includes some competition law elements. The article argues that international competition law under the WTO could provide a meaningful solution to some current trade/competition conflicts, although theoretical and practical obstacles require a modest beginning concentrating on substantive principles about which there is widespread consensus.

"The issue is not whether competition policy questions will be dealt with in the WTO context, but how and, in particular, how coherent will the framework be within which this will be done".
The 'Family-Friendly Workplace': The EC Position
Authors: Caracciolo Di Torella Eugenia
Published: April 2022

With changes being made in the family structure recently it is important that laws and legislation be addressed accordingly. There is an increase in single parent families and an increase in 'two-breadwinner families'. In order to handle the two family frameworks new welfare laws encouraging single parents to find employment have been implemented as well as new laws on parental leave. This legislation can be found at the EC level. This article focuses on the needs which must be met of the these young families and offers suggestions as to they could be further helped.
The Right to Part-Time Work: The Netherlands and Germany Compared
Authors: Schmidt Marlene
Published: April 2022

The Dutch and the German legislators have very recently introduced the employees' right to claim an adaptation of their individual working time which is mainly discussed under the label 'right to part-time work'. This article outlines the similarities and differences between the Dutch and the German legal situation and discusses these with regard to the European Directive 97/81/EC on part-time work.
BGH, Urteil vom 11. Dezember 1998 — Zur Rechtlichen Einordnung eines Wiederverkaufsrechts — Anwendbarkeit der §§ 497, 498 BGB und Gewährleistung Spanish Case Note
Authors: Cámara-Lapuente Sergio
Published: April 2022

The decision of the German Federal Supreme Court was based on the following set of facts: the defendant sold the claimant several properties in 1993 for an overall price of 1.7 million DM. In § 12 of the notarised contract it stated:

'The vendor undertakes to repurchase the … property on the request of the purchaser up until 30.6.1996. The request must be made to the vendor in writing before 31.3.1996. The repurchase will then take place in accordance with the conditions of this contract for a sale price of 1.7 million DM.'

By an agreement of 6.2.1994 the defendant granted the claimant an interest-free loan of 300,000 DM with provision that in the case of a repurchase this sum would be set off against the purchase price to be demanded by the claimant. The remainder of the purchase price was to be settled via an extension of credit. In 1995 the claimant demanded that the property be repurchased by 31.1.1995. The defendant refused this, objecting that the condition of the object of the sale had deteriorated significantly during the time that it had been in the claimant's possession, through the fault of the latter.

The Landgericht rejected the claim, the Oberlandesgericht gave judgment for the claimant, with the proviso that the property be sold without any guarantee as to its size or condition, but that the vendor's rights arising from § 498 (2) BGB should remain unaffected.

The defendant's appeal to the Supreme Court led to this decision being quashed. In the opinion of the Supreme Court § 497(1) BGB was not applicable to the right of resale, since the parties had not included this right in their agreement as a right on the part of the purchaser to modify the terms of the contract, but rather as an obligation to repurchase on the part of the vendor. Furthermore, neither §498 (2) second sentence BGB nor § 498 (2) first sentence BGB were applicable by analogy to the resale of immovable property, because of the difference in the framework of the parties' interests. In so far as the parties had structured the right of resale as a personal obligation, the purchaser could only require the conclusion of a contract of repurchase if he at the same time made good the defects that had emerged in the interim period.

On the following pages, the authors examine the decision from the point of view of Belgian, Spanish and Greek law.
On Some Peculiarities and Problems of Russian Labour Law
Authors: Mavrin Serguey P.
Published: April 2022

This article highlights some peculiarities and actual problems of Russian Labour Law, Russian Labour Code reform and the problems of codification of Russian labour legislation. First, the author draws attention to the fact that Russian labour legislation is organized as a completely independent autonomous branch of Russian law. The second peculiarity consists in heavy legislative regulation of relations arising at the conclusion of an employment contract. The overprotection of the worker has the effect of deterioration of its position. The third peculiarity consists in ascribing labour legislation to objects of joint legislation, to objects of joint jurisdiction of the Federation and its subjects. Thereby, both the Federation and its subjects are authorized to draw up labour legislation separately and independently. Serious work has to be done regarding the problem of delimitation of objects of jurisdiction between the bodies of state power of the Russian Federation and the bodies of the RF subjects.
Trade Unions and Labour Law in a Modern Russia
Authors: Rudokvas Anton D.
Published: April 2022

The author highlights the actual problems of the trade union movement and labour market changes taking place in a modern Russia, analyzes the evolution of trade unionism through the prism of its history. He rightly believes that it is impossible to carry out such a study without addressing the situation in this field in the U.S.S.R. as many realities of that time continue to exist in an adjusted form now. In terms of centralized state soviet trade unions performed the role of one of the divisions of the mechanism of the government. The appearance of alternative trade unions marked an important shift towards decentralization and liberalization of the labour relations. The peculiarity of a trade union movement in Russia of the second half of the 1990s consists in its high degree of politization. In the event of a rigid confrontation between workers and employers the functions of trade unions on the regional level are often taken by small opposition parties and left groupings. The proclamation of the course aimed at the formation of the market economy in a post-communist Russia has brought the questions on the labour law reform. So another important issue touched by the author concerns the reform of the Russian Labour Code which was adopted in the epoch of socialism and now results no more adequate in light of the drastic social economic and political changes taking place in Russia.
Part-Time Employment in Spain
Authors: Baeza Jaime Yanini , García Carmen Agut
Published: April 2022

The need to adapt the length of the working day to meet the interests of both firms and workers is a reality that has imposed itself on work relationships throughout the whole of the European social space. The maximum number of work hours per day set out in the current labour regulations of the Member States is completed with part-time work. Faced with the need to bring the national legislations on this matter into line, the European Union issued the Council's Directive 1997/81, of 15 December 1997, concerning the framework agreement on part-time work drawn up by UNICE, CEEP and ETUC. Spain has adapted its regulations to the requirements and interests of both workers and employers by introducing corrections and modifications into each and every one of the labour reforms that have been brought in since the Workers' Statute was adopted in 1980. This study deals with the regulatory process and the legal system concerning part-time work currently applicable in Spain and came into force with the enactment of the Real Decreto-Ley 5/2001, of 2 March.
BGH, 4 Februar 1998* — Zur Bereicherungshaftung des Beschenkten Gegenüber Demjenigen, Dessen Wertpapiere ihm der Schenker unter Ausnutzung einer Verfügungsvollmacht Zugewendet Hat
Authors: Jacometti Valentina , Storme Matthias E. , Lytras Theodor
Published: April 2022

The ruling of the BGH was based on the following facts. In 1986 the claimant received several securities from the father of both litigating parties. Their father had a power of disposal over the claimant's bank account and the securities deposit, respectively. In 1994 the father — in agreement with Defendant, being the claimant's sister — arranged for a transfer of the securities to Defendant's deposit. The claimant argued that his father has thus abused the power of authority conferred upon him. Defendant allegedly knew of the ultra vires nature of this action. In addition, the transfer of the securities had fiduciary effect only. Defendant disputed that the securities were part of the claimant's property. Also, she argued that she was not aware that they were transferred from the claimant's deposit. From her point of view, the transaction was a gratuitous grant originating from her father's property.

The District Court ruled in favour of the claimant; whereas the Court of Appeals dismissed the action. The ensuing appeal to the BGH brought by the claimant resulted in a reversal of the latter ruling and the case was subsequently referred back to the Court of Appeals.

In this case, the BGH discussed the relevant provisions contained in the law of unjust enrichment. Art 816 para. 1 2nd sentence BGB was held not to be applicable since the element of disposal by an unauthorized person was missing. Then, the BGH considered Art 812 para. 1 1st sentence ('on account of the claimant') as a basis for holding the claimant accountable, the requirements of which are prima facie complied with:

The securities were part of the claimant's property; the excess of authority was met by the gratuitous disposal effected by the authorized person, i.e. the father. Both elements do not amount to a justification for keeping the securities in question in the meaning of Art 812 para. 1 1st sentence. It is, however, of the essence how the transfer of securities to Defendant is to be qualified (for instance, as a benefit/performance by the father to Defendant; cf. principle of priority of the Leistungskondiktion).

This assessment, in turn, depends on various other circumstances (such as the expectations of the parties involved; the viewpoint of the beneficiary, etc.) in respect of which the Court of Appeals has not yet asserted the necessary facts.

The following case note discusses the decision by the BGH in the light of Belgian, Dutch, Italian, and Greek Law.
Equality, Non-Discrimination and the Labour Market in the UK
Authors: Barnard Catherine , Kilpatrick Claire , Deakin Simon
Published: April 2022

English law lacks a general principle of equality of the kind found in constitutional texts in some other European countries. Legislation embodies a principle of non-discrimination in employment on grounds of sex, race and disability. This body of law stresses formal rather than substantive equality, and defines discrimination in terms of the asymmetrical treatment of individuals rather than by reference to the structural sources of group disadvantage. These conceptual weaknesses are part of the explanation for the relatively limited impact of the legislation on the UK labour market, which continues to be characterized by occupational segregation and persistent pay inequality.
Soft Law in the Field of EU Competition Policy
Authors: Whish Richard , Cosma Håkon A.
Published: April 2022

This paper examines the use of soft law in the field of EU competition policy. It recognises the trend towards softer forms of governance and that soft law plays an important role as an information source for individuals and undertakings in the market. The paper investigates the pros and contras of the ever increasingly use of soft law. In addition a classification of the instruments is attempted. The focus is mainly on the European Commission’s use of soft law since it is the major developer and user of these measures.

The paper begins with a discussion of the concept of soft law. It also examines the practical and legal effects of these quasi-legal measures. Furthermore the paper shows how individuals and undertakings comply with soft law even though they are not obligated to do so as a matter of law. The paper also discusses soft law’s contribution to the development of legislation. It recognises that these measures play an important role in the development of new competition policy.

Furthermore the paper shows that the instances of discretion inherent in the legal framework makes the Commission’s use of soft law possible as well as desirable. It concludes by pointing out that despite its negative features soft law will play an even more central role in the future. Soft law aids the understanding of the complex antitrust rules developed through case law and individual decisions by the European Commission. It makes the system more transparent. The soft law approach combines a flexible regulatory system with enhanced legal certainty.
European Tort Law: Is it Possible?
Authors: Banakas Stathis
Published: April 2022

This article contemplates a new European tort law, based on entirely new, reformed common princinples and not a conceptual amalgamation of the common or not so common principles of existing national laws in the EU. It starts with discussion of the arguments for and against a common European tort law. Then the article addresses the question of how this new law should be created. It proposes five new liability principles as anchors of liability, with examples of how they should work. And it suggests a method similar to that of the American restatements, with the creation of a European Law Institute, for the production and promotion of a uniform text of European Tort Law.
Rights for Children?: The Potential Impact of the European Union Charter of Fundamental Rights
Authors: McGlynn Clare
Published: April 2022

Children are largely invisible in EU law. There is no `children's policy' to speak of and little apparent interest in developing mechanisms to consider the interests of children in policy and decision-making. This position is set to change with the adoption of the EU Charter of Fundamental Rights which contains a number of provisions relating to children. The mere inclusion of a specific provision on children in the Charter is highly symbolic and represents a significant new phase in the EU's relations with children. Furthermore, the new rights will require a re-examination of existing practices and will provide a new framework within which future decisions must be taken. The Charter's provisions will, therefore, provide support for those demanding a more integrated and thoughtful approach to children in the Union. Thus, despite the limited and often restrictive nature of the Charter's provisions on children, they represent a success story of the Charter
Modernizing the German Works Council System: A Recent Amendment
Authors: Weiss Manfred
Published: April 2022

The statute on the German works council system, somehow the backbone of industrial relations in Germany and a point of reference in many comparative studies on workers' participation, has been significantly amended in 2001. This amendment was supposed to improve the conditions for the application of the law in small and medium-sized companies, to adapt the traditional organizational structure to the needs of an ever changing reality, to improve the ressources available to the works councils and to increase the works council's powers in specific areas. It turned out to be highly controversial. The article describes the innovations in a sketchy way and tries to evaluate their impact on the future functioning of the works council system in Germany.
National Employment Regimes and Firms' Staffing Arrangements: Insights Gained from Comparing Norway as an ‘Ideal Typical Case’ with the United States and the United Kingdom
Authors: Nesheim Torstein
Published: April 2022

Most theoretical and empirical contributions to research on non-standard employment have an American or British origin. Due to particular institutional models, categories and explanatory mechanisms, one should not uncritically compare the US or UK to other Western countries. Using Norway as an ‘ideal typical case’, we intend to show how characteristics of the regulative, national institutional environments influence firms' choices of employment arrangements. The main conclusions are that employment arrangements are social categories that differ between countries and that consequences of the regulative environment should be modelled through its effect on a firm's legal based exit costs. An implication of the discussion in the paper is that the dominant perspective of firms' choice of employment arrangements should be challenged.
Creating New Markets and New Jobs: The Personal Services Sector. Problems and Perspectives from an Italian Point of View
Authors: Biagi Marco , Biagi Marco
Published: April 2022

It is known that labour market has undergone a rapid and continuous evolution. Unfortunately the juridical discipline does not always follow the dynamics of the development of socio-economic phenomena. Very often new social phenomena are governed by old rules and in their scope, contents, and cultural inspiration they cannot correspond to the new realities. This process is accompanied by the crisis of legality with the increasing ineffectiveness of law. The sector of personal services is very emblematic in this concern as it seems to be completely deregulated. In Italy the increase of demand for personal house services to the elderly is accompanied by the reduction of the available indigenous workforce. It is the reason why the employers usually use the foreign work-force for these kinds of services. Often such relationships are illegal and wages are respectively lower.

Taking into account the strong expansion of the personal service sector the authors of this article tried to examine the normative practices and evolution of tendencies especially in the perspective of regularisation of the previously illegal labour relationships.
OGH, Urteil vom 23.11. 1999 — Ordnungsgemäβe ärztliche Aufklärung und Beweislast für Behandlungsfehler
Authors: Maniotis Dimitrios , Schiltz Franz
Published: April 2022

Concerning the facts of the decision see Spanish case note (1. Background facts).

Any comment on the ruling by Austria's Supreme Court of 23 November 1999 must necessarily address the subject of patients' right to information. In Spain this right is recognised in article 10.5 of the Health Law, as well as in regional legislation in Catalonia and Galicia. Also required is reflection on information as one of the doctor's duties, particularly as a prerequisite for a patient to consent to an intervention and treatment proposed by the doctor responsible for his care (so-called “informed consent”). Furthermore, the issue of the secrecy by which doctors are bound must also be addressed, as regulated in different pieces of legislation, in order to determine its exact scope. Appropriate too is an examination of case law developments with regard to the burden of proof in civil liability generally and, more specifically, medical liability. In this latter area there has been a notable shift towards facilitating the position of the patient, among other ways by focusing on the better probatory position of the doctor. The present commentary concludes with brief reference to the negative consideration given by the courts to the plaintiff's refusal to relieve the doctors from their duty of secrecy. This consideration ultimately led the Austrian Supreme Court to send the proceedings back to the court of first instance, with instructions to question the doctors as witnesses and rule once again on the plaintiff's application.

The case is annotated from the perspective of Spanish, Luxembourg and Greek law
International Implications of US Antitrust in the George W. Bush Era
Authors: Davidow Joel
Published: April 2022

US antitrust policy under George W. Bush had a measure of continuity with that of earlier administrations. Prosecution of international cartels remained vigorous. The pattern of obtaining cooperation from other jurisdictions and emulation of US leniency strategies was expanded. As cartel prosecution continued, significant new issues arose concerning the scope of US extraterritoriality. A US circuit court diverged from other US courts by holding that even foreign purchasers may prosecute damage claims in US courts. A split in the circuits also developed concerning whether the Alcoa requirement of proof of substantial effect of foreign conduct applies only to the conduct of firms which do not sell their products directly in US commerce, or, as one court of appeal has recently held, applies to all foreign-owned firms who hold their price fixing meetings abroad. As the European Union and other jurisdictions have developed competition enforcement systems comparable to that of the United States, harmonisation has become a major American priority in regard both to procedural and substantive approaches. On the procedural front, the newly formed International Competition Network will be developing “best practices” in regard to merger control and competition advocacy. In regard to substantive policy, many US priorities, such as searching out cartels and major horizontal mergers while relegating distribution practice to lesser status, are being followed in the European Union and elsewhere. But the new US administration has reacted strongly to the European Union’s use of a leverage theory to condemn a proposed GE–Honeywell merger which the Americans found unobjectionable. It is not clear whether the two great powers will simply agree to disagree or the European Union will back away from some of the implications of its ruling. In regard to the issue of victims’ rights, US and EU policy is not coalescing, but US antitrust officials have not pressed the issue. US damage remedies against price fixers grow ever more varied, while DG IV has no plans at all to help cartel victims obtain recompense. In regard to the simmering issue of a WTO competition code, the United States has gained at least a postponement for a year or two, and the European Union has been stripping down its proposals to a relatively unobjectionable few.
Social Protection in the SADC Region: Opportunities and Challenges
Authors: Olivier Marius
Published: April 2022

The contribution highlights certain core elements which inform the context within which social protection and labour law protection in the SADC (i.e. the Southern African Development Community) region is bound to operate. Given the inadequate social protection and labour law protection in the SADC region, the article suggests that responses at both regional (SADC) and country level are needed, and investigates some of the distinct and innovative developments in the region which potentially form the basis for fostering social protection. It examines different possibilities for the coordination of social security measures in SADC, bearing in mind experiences elsewhere, stressing in particular the possibility of adopting an international or regional minimum standards and human rights baseline approach for purposes of social security coordination in the region and the strengthening of social and labour law protection in the SADC region.
Cour de cassation française, 26 Avril 2000 — priority conflict between the seller under title retention and the assignee of the resale claim
Authors: Sagaert Vincent
Published: April 2022

The French Cour de Cassation delivered on 26 April 2000 a decision dealing with the priority conflict between a seller under title retention and the assignee, pledgee or subrogee of the claim of the purchaser who re-sold the goods. The Court granted priority to the former, relying on the argument that the latter could not acquire more rights than these belonging to the re-seller.

The decision is closely related to the principle of “real subrogation” (“tracing”), which exists of the substitution in the object of a proprietary interest. Indeed, the priority conflict as mentioned only arises if the proprietary right of the original seller under title retention is maintained on the claim out of the resale. This implies the substitution of the originally sold assets by the claim out of the sub-sale as object of the proprietary right. The decision witnesses of the possible far reaching consequences of real subrogation within the field of security law. The judgment is analysed in the following comparative comment from the perspective of French, German, English, Dutch and Belgian law.
Mixing Tools Against Proliferation: The EU’s Strategy for Dealing with Weapons of Mass Destruction
Authors: Álvarez-Verdugo Milagros
Published: April 2022

Proliferation of weapons of mass destruction constitutes a renewed risk for International Peace and Security. The conventional international mechanisms that control WMD rely on the State, but their efficiency faces specific challenges nowadays. Within this context, the EU has tried to enhance its role as a non-proliferation actor, specifically with the adoption of the EU Strategy against proliferation of WMD in December 2003. This Strategy reflects the political will of EU Member States to fight against proliferation in a specific ‘European way’. This ‘European way’ is related to the nature and structure of EU, and has classical European trademarks: rule of law, multilateralism, economic and political pressure on third States, focus on the political causes of international problems, and international cooperation. To assess the EU approach, the article examines the scope, objectives and principles of the EU strategy as well as her instruments with regards to WMD. Overall, the analysis shows that the EU strategy, even if not sufficient, is effective against proliferation of WMD and, at the same time, is compatible with the main requirements of international law.
Acts to Combat the Financing of Terrorism: Common Foreign and Security Policy at the European Court of Justice
Authors: Vlcek William
Published: April 2022

This article considers the September 2005 judgement from the Court of First Instance involving the measures taken by the European Union (EU) to interdict terrorist financing. The case presented the Court with an opportunity to step outside the designated boundaries of their jurisdiction and intervene in a question of common foreign and security policy. The European Court of Justice was responding to an application to annul Council Regulations that implemented ‘smart sanctions’ against residents of the EU as directed by several United Nations (UN) Security Council Resolutions. The circumstances and implications of the Regulations and the Judgement are interrogated here as a question of EU relations with the UN and the Security Council. The use of financial sanctions against individuals merely accused of supporting terrorism in this situation permits limited recourse for rebuttal and restitution. Furthermore, the use of evidence that must be kept secret from the accused, for security reasons, is problematic for a jurisdiction governed by the rule of law. This analysis points to a need for further research on the human rights implications that arise from the imposition of financial sanctions upon EU residents.
The European Union and Democracy Promotion in Bad Neighbourhoods: The Case of Central Asia
Authors: Warkotsch Alexander
Published: April 2022

This article examines European Union democracy promotion in Central Asia. It is found that the policy is high on rhetoric but remains low on delivery. Relatively low levels of assistance were found, concentrating mainly on good governance instead of democratisation. Furthermore, strong instruments are hardly used; even the principle of positive conditionality lacks observance. Three explanatory propositions are outlined, one drawing on the EU's multi-level system of governance, one on the structure of resonance among the target societies and one on the resource relations between the EU and the Central Asian states. In conclusion it is argued that the EU's political agenda in Central Asia is driven more by security and its self-interests than by the norms and principles of democratic governance.
Janus Advances? An Analysis of EC Development Policy and the 2005 Amended Cotonou Partnership Agreement
Authors: Hadfield Amelia
Published: April 2022

This article suggests that an inherent duality of poverty-reduction goals and security objectives now typifies EU development policy. The EC is attempting in Janus fashion to incorporate seemingly oppositional dynamics into its development policy, with the result that development policy itself now operates more robustly as official EU foreign policy. Both outcomes may be observed in the 2005 Amended Cotonou Partnership Agreement and the 2006 Development Consensus. While adhering to the original development objective of poverty reduction, the CPA represents an apparent break from poverty-reduction policies established in the 2000 CPA. The rise of politicized and especially securitized principles have had unsettling effects on the objectives of EC development policy while enhancing the impact of EU foreign policy.
The External Dimension of EU Action in Criminal Matters
Authors: Mitsilegas Valsamis
Published: April 2022

The rapid development of internal European Union action in criminal matters in recent years has been accompanied by a strong emphasis on external action in the field. Implementation of the EU acquis in the field has been required in the context of accession negotiations and has been an important (if not thorny) issue in both the 2004 and 2007 enlargements; and cooperation in criminal matters is regularly requested by the neighbours of the Union. Moreover, recent years saw the European Union launching itself as an international actor in criminal matters by negotiating and concluding a series of – heavily contested – international agreements with third countries (primarily with the USA) in the field. Less visible, but perhaps equally far-reaching, has been the Union’s involvement in the development and application of international criminal law standards via its participation in international treaties and organizations, and its acceptance in the Union legal order of standards produced by international organizations and bodies. This article will examine the many facets of EU external action in criminal matters. Developments in the external field will be viewed in the light of their coherence with the Union’s ‘internal’ action in criminal matters, and the broader challenges that EU external action in the field to the EU’s projected identity and values will be explored.
How the EU Negotiates Trade and Democracy: The Cases of China’s Accession to the WTO and the Doha Round
Authors: Zimmermann Hubert
Published: April 2022

The paper explores the characteristics of the EU in international trade negotiations, using the talks about China’s accession to the WTO (1985–2001) and the Doha Development Round (1999–2007) as main case studies. These long negotiating processes permit an analysis of the influence of postmodern values, such as democracy promotion, sustainable development and human rights policies, on European trade strategies. Normative concerns play an important role in the official discourse of EU foreign policy. Based on an institutionalist theoretical framework, it will be argued that the Council and the Commission pursue a trade policy with little regard to these objectives (and also other societal interests). Contrary to rhetorical commitments by EU institutions and contrary to the claims of some leading theoretical schools, the system of decision–making in EU foreign trade policy systematically privileges strategic political and economic interests in the case of clashing objectives.On the positive side, this enables the EU to pursue consistent strategies and coherent negotiating positions, especially compared to US international trade policies.
The European Union as a Security Policy Actor: The Case of Counterterrorism
Authors: Beyer Cornelia
Published: April 2022

This article examines the actorness of the European Union in the security policy field. Applying and adapting criteria developed by Bretherton and Vogler – namely criteria regarding structure, effect and international status – the European Union is described as a ‘collective actor’. Collective actorness is dissimilar to that of a classical international unit, i.e. the state, but implies that some coherence, cooperation and a certain amount of collective action can be expected. Also, of relevance for the measurement of actorness is the extent of participation in global governance and recognition in international law. After testing the EU on seven criteria, it can be discerned that a certain collective actorness is present, even if problems regarding a ‘common voice’ and the coherence of internal policies still exist.
The EU’s International Image As Seen by the Commission’s Diplomats
Authors: Carta Caterina
Published: April 2022

This article aims to present an overall portrait of the Union as an international actor, as stemming from the visions that officials working in the delegations of the European Commission hold. The analysis proposed draws on different sources. First, an analysis of speeches, declarations, official statements and informative materials published on some 80 websites of the delegations. These websites propose a standardized presentation of ‘the EU as a global player’, which can help us to define the official position of the European Commission on the issue. An unofficial picture of the EU as a global player stems from the analysis of 48 semi–structured interviews. Although there is relative similarity in the presentation of the EU’s international image, these offical and informal intepretations are not always interchangeable.
EU–EC External Competences after the Small Arms Judgment
Authors: Van Vooren Bart
Published: April 2022

Abstract. On 20 May 2008, the Court of Justice handed down its long–awaited judgment in the Small Arms case (C–91/05). Two issues are addressed in this initial essay. First, three different approaches to the relationship between the Community and the Union as captured in Article 47 TEU are proposed, and it is argued that an overly strict interpretation of the ‘non–affectation clause’ could render the CFSP nugatory, whereas an exceedingly unrestricted interpretation could open up an escape route from the legal principles applicable to the Member States in their relationship with the Community. Second, the court’s judgment is assessed in the light of the various options and their underlying rationales. In the final paragraphs, the article concludes that the ECJ’s approach to the two CFSP instruments before it is incongruent, and therefore does not settle the dust that had been stirred up by this cross–pillar conflict. Noting the importance of this case, this contribution is the opening part of a diptych. Whereas this article discusses the case in the context of the post–Nice Treaty framework, a follow–up contribution will assess the case’s importance should the Lisbon Treaty be ratified.
Judicial Review by the European Court of Justice of UN ‘Smart Sanctions’ Against Terror in the Kadi Dispute
Authors: Harpaz Guy
Published: April 2022

In September 2008, the European Court of Justice found EU measures implementing UN Security Council resolutions which had called for the imposition of financial sanctions against certain persons and entities associated with Usama bin Laden, the Taliban and the Al– Qaeda network to be illegal. In a robust, inward–looking, human rights oriented, constitutionbased judgment, the ECJ provided a venue for indirect judicial review of Security Council resolutions and restored the EU legal order to its constitutional foundations. The ECJ furthermore buttressed the bridges between the EU legal order and the ECHR legal order, while erecting high walls between the former and the international law–UN legal order. The dispute before the EU judiciary highlights the multifaceted nature of modern, multilevel governance (multilateral: UN; regional: European; and national). It juxtaposes multilateralism with regionalism; the need to effectively combat international terrorism with the need to protect human rights; and the predominance in international relations of politics and diplomacy with the predominance of international and EU law. This article tackles all these themes, highlights the importance and complexities of the issues involved and analyses the commendable manner in which the ECJ addressed them.
Path Dependency in EU Enlargement: Macedonia’s Candidate Status from a Historical Institutionalist Perspective
Authors: Giandomenico Jessica
Published: April 2022

This article argues that EU enlargement policy and actions within that field are guided by the logic of path dependency. By studying the decision to confer candidate status on Macedonia in 2005, which was granted despite important shortcomings regarding democracy and rule of law, we can reveal key aspects of the decision–making process regarding the enlargement policy. The Macedonian crisis in 2001 was instrumental in shaping EU enlargement policy as a foreign policy tool to promote peace and stability in the Western Balkans. The peace agreement that ended the conflict, in turn, became an important reference for measuring reform progress in Macedonia. The enlargement policy thus became locked in a path–dependent pattern, where the implementation of the peace agreement from 2001 has become very important. The strong commitments by the EU towards Macedonia are identified as a particularly strong mechanism influencing the path dependent pattern. Where other influential theories cannot explain contradictions between EU Member State voting and preferences, or ignorance of democratic shortcomings, historical institutionalism offers tools to make such theoretical inconsistencies intelligible.
The Cyprus Problem in the European Parliament:A Case of Successful or Superficial Europeanization?
Authors: Tsardanidis Charalambos , Stavridis Stelios
Published: April 2022

There is a vast literature on Europeanization but to date it has not concentrated on its impact on EU institutions. There is an emerging literature on the external relations of transnational parliaments (including the European Parliament’s external policies), some of it labelled ‘parliamentary diplomacy’, but it remains an under–studied area all the same. The original contribution of this article is to bring those trends together in a specific attempt to identify if there is a Europeanization of the European Parliament (EP) on a specific international issue: the Cyprus problem. That particular question is extremely important because the EU’s enlargement policy is considered to be its most effective Europeanization process. As the Republic of Cyprus has now joined the EU and Turkey has begun accession negotiations, the role of the EP is extremely relevant. After reviewing briefly the existing literature on Europeanization, and on the external relations of the EP, the article considers in more detail the EP’s empirical record on the Cyprus problem. It identifies three distinct stances and phases. It concludes by arguing that a shifting EP stance on the Cyprus problem shows signs not of a successful Europeanization, but rather of a superficial one, which depends largely on changing circumstances and national preferences.
Pioneer Europe? The ENP as a Test Case for EU’s Foreign Policy
Authors: Tulmets Elsa , Delcour Laure
Published: April 2022

Abstract. This article uses the European Neighbourhood Policy (ENP) as a case study to conceptualize and to define further the characteristics of the European Union as an international actor in the making. It builds upon discourse analysis and field research to argue that the European Union can be best understood as a ‘Pioneer Europe’ looking for new ways of doing foreign policy, thus experimenting its policies abroad and constantly learning from the successes and failures of its own policies. The article highlights in particular the discrepancies between a policy discourse mainly developed around the notion of the EU as a ‘soft power’ and implementation in the field reflecting the various tensions inherent to a policy which, at the image of the EU, still encounters difficulties to define itself.