bluuebunny/crossref_metadata_2025 huggingface dataset:
III. Edmund Burke and the Origins of the Theory of Nationality
Authors: Cobban A. B. C.
Published: July 2016

While there seems no end to the polemics of nationalism, a critical analysis is far to seek; for which reason an account of the beginnings of the theory of nationality in the eighteenth century may be of value to the political theorist as well as of interest to the historian. We may say of its beginnings, because although nationality as a fact is in England and some other countries of Western Europe a heritage of the Middle Ages, as a theory it is much more recent in origin. In Shaw's Saint Joan, Pierre Cauchon, discussing with Warwick the popular uprising in France under the Maid, says, “If I were to give it a name I should call it—nationalism.” Mr Shaw's Bishop is nearly four centuries in advance of his age. It was not till the nineteenth century that men in general began “to call it nationalism,” and under the guidance of such as Wordsworth and Mazzini to understand in some degree what they implied when they did so. The Revolutionary upheaval and the Napoleonic dominion were necessary to rouse the nations to self-consciousness. But these events, though they may partially account for the fact, do not altogether elucidate the theory of nationality. For its veritable beginnings we must look earlier. It is a significant fact in considering the causation of the nationalistic movement that the first and possibly still the wisest of the theorists of nationality had developed his ideas long before the Revolution.
IV. The Diary of a Country Gentleman in 1688
Authors: Vellacott P. C.
Published: July 2016

[In the Streatfeild Collections Relating to Kent there is a transcript with the following heading: “Minutes, in great part transcripts, from ye Diaries of Sr Edward Dering, and of Sr John Knatchbull; from the originals at Hatch. T. S. 1835.” In the Index to Add. MSS. the diaries are attributed to Sir Edward Dering (ob. 1689) and Sir John Knatchbull (ob. 1696), and Dr Harold Temperley refers to them in the bibliography of the Cambridge Modern History.
II. The Appropriation of Parish Churches during the reign of Edward III
Authors: Wood-Legh Kathleen L.
Published: July 2016

The vicarage system has already attracted a number of historians and owing to their investigations the main points in its origin and development are well known. The subject, however, still presents difficult problems, and it is in the hope of contributing towards a solution of some of these that the present paper has been prepared.
II. Acton and the Massacre of St Bartholomew
Authors: Butterfield H.
Published: July 2016

The earliest literature on the massacre of St Bartholomew, we are told, was dominated by the attempt of Henry, the Duke of Anjou, to secure the throne of Poland. Henry needed the support of the Protestants in that country—then a more considerable body than they have ever been since; and, as he had been one of the chief culprits in the massacre, the Huguenots were determined that the world should know the magnitude of the crime. He secured his election in 1573, but, in the face of the storm which was raised against him, he was supposed to have been seized with remorse in Cracow, and to have made a confession to his doctor, Miron—a narrative which we shall have to notice later.
IV. Entente Manquée: Anglo-French Relations, 1895–1896
Authors: Hargreaves J. D.
Published: July 2016

In the voluminous historiography of international relations between 1871 and 1914, one of the thinnest patches is the middle 90's. Documents Diplomatiques Français had in 1939 not reached the years 1893–1900, and even now are filling this gap only slowly; the British archives for 1885–1902 were not opened until 1948; Russian material is slight. The consequent dependence of students upon Die Grosse Politik has had profound effects. French policy stands in especial need of re-examination; there is much interest in the early, vain attempts of French statesmen to end the baleful conflict with England. Mr A. J. P. Taylor has gone so far as to say that the Russian alliance was for France a means of achieving British friendship in more favourable conditions. The latest volume of French documents makes it possible to take this study further.
IV. The Religious Difficulties of National Education in England, 1800–70
Authors: Best G. F. A.
Published: July 2016

The peculiar problems and difficulties in the way of achieving a national system of elementary education in nineteenth-century England have long been so obvious and notorious that a new attempt at an objective and comprehensive view must seem surprising and rash. My excuse for nevertheless making that attempt is not the discovery of any new material, which, even if it were to become available, could hardly alter the well-known outlines of the harrowing tale as told in the standard histories: nor could much be added to the careful sketch made of the Church's contribution by F. Warre Cornish, or the excellent summary of the educational principles in conflict given by W. F. Connell. To the details of these, and of the distillation of them which appears in the best text-books, I can suggest only one positive amendment. But looking at the matter from the sheltered advantage of one who has not to write a detailed thorough book about it, it seems to me that none of the existing books can do the subject justice, for none of them tells the whole story. If such substantial books as have already been written fail to tell the whole story, it is obvious that a brief article will not succeed in doing so, and I can only aim to suggest something which the ideal complete history must not omit. For more than half a century we have been learning that the issues of Church and State in the Middle Ages can never be understood if Church and State are regarded as susceptible of separate histories. To see them thus is to see two things where men at the time saw but one. Similarly, the problems of Victorian public education cannot properly be understood in their multi-dimensional reality if they are split into categories normal, perhaps, for our own time, but strange to theirs.
II. The Court of King Æthelberht of Kent
Authors: Deanesly M.
Published: July 2016

One of the most interesting features of modern historical work on the Anglo-Saxon settlements in recent years has been the tendency to admit a possible connexion between the Jutes and the Franks; or even to stress the possible associations, either of race or culture, between the Germanic conquerors of Kent and the mixed Germanic races of the middle Rhine and northern Gaul. That the language of the Cantware, or whatever they called themselves, was not very different from that of the subjects of the kings of Paris is suggested by the sending of Frankish interpreters along with the Italians of Augustine's mission. Linguists admit this, and they have been delighted to find remnants of the Frankish gau embedded in Kentish placenames. Archaeologists tell us that the early Kentish kings minted no coins of their own, but used Frankish ones, or else used their own rings and bracelets for money; when they did begin to have mints of their own, they copied Merovingian coins in weight, though not in design. Frankish coins, for that matter, were used farther afield than Kent: the coins found at Sutton Hoo were all Merovingian. It is in this pleasantly pro-Frankish context that the subject of the court officers of king Æthelberht of Kent is here offered for consideration. Someone may say: Æthelberht I know, and queen Bertha I know, and Augustine I know, and, in fact, all that Bede tells us about Æthelberht I know: but who are these officers of the court of Æthelberht that you are speaking of? We know, they say, that Æthelberht's law speaks of eorlcund men who had a wergeld of 300 shillings, and ceorls, who had a wergeld of 100 shillings: but we cannot remember that the individual officers of Æthelberht's court are mentioned by anybody; or at least, by any source that is reliable.
III. The Evangelical Movement in Perspective
Authors: Smyth Charles
Published: July 2016

The purpose of this essay is not so much to answer questions as to raise them; not to present conclusions, but to prospect a territory which remains to a remarkable extent unmapped, and to suggest lines of future exploration which few of us, in present circumstances, have either the leisure or the opportunity to pursue.
I. New Documents in the Case of Saint William of York
Authors: Talbot C. H.
Published: July 2016

In the course of a survey of manuscripts, undertaken for the forthcoming edition of Saint Bernard's works, the writer had the good fortune to find in Paris a series of unedited letters dealing with the problem of the disputed election of York. A rapid examination showed that whilst they threw no additional light on the main point at issue in this controversy, namely, on the truth of the accusations laid by his opponents against William of York, they certainly illuminated other aspects of the question, which hitherto had not been quite clear. They showed, for instance, the cause of the failure of the first legation to Rome in the early part of 1142, who were the main supporters at the Roman Curia of the opposing party, the dangers run by the Cistercians and Augustinians in presenting their case, and several other details of a like nature. Above all, the letters strongly confirmed all the conclusions reached by Professor Knowles in his article describing all the stages of this rather involved affair. Apart, therefore, from the inherent interest which a series of letters of this kind undoubtedly possesses, the decision to print them here seems, in view of the confirmation they provide, to need no further justification.
I. The Composition of the Chapter of St Paul's, 1086–1163
Authors: Brooke C. N. L.
Published: July 2016

No secular institution of the English Church has left behind richer materials for the study of its history in the twelfth century than the cathedral chapter of St Paul's. There is a fine series of original charters, and two important cartularies; fragments of a twelfth-century survey, and a complete survey of the early thirteenth century from which a long stretch of agrarian history can be reconstructed. The letter collections of Gilbert Foliot, bishop from 1163 to 1187, Master David of London and Peter of Blois, and the splendid thirteenth-century inventories give an insight into the activities, characters and tastes of many of the canons. The chronicle and ordinances of Master Ralph de Diceto, the most distinguished of its deans; a sprinkling of hagiographical and theological writings; calendars and obit rolls; and a catalogue of the holders of the thirty prebends, purporting to start in the days of Bishop Maurice (1086–1107)—these and numerous other more incidental sources of information go to make up the tale of the evidence.
V. F. W. Maitland and R. Lane Poole
Authors: Poole A. Lane
Published: July 2016

The following letters from Frederick William Maitland to Reginald Lane Poole are supplied (with the addition of explanatory notes) by Mr Austin Lane Poole, President of St John's College, Oxford, from the original manuscripts which he has since presented to the Cambridge University Library. They are printed in full, together with such of the replies from Reginald Lane Poole as are preserved amongst the Maitland Manuscripts in the same Library.
2. Further Note on Recent Advance in the History of Medieval Thought
Authors: Knowles M. D.
Published: July 2016

In an article written some five years ago, it was remarked that in no field of medieval studies has recent progress been so notable as in the history of thought. The advance has continued, and already several pages then written have been put out of date by writings that have been subsequently published, or at least made available in England. A few further notes, therefore, to supplement and correct the earlier article, may not be out of place.
III. Charles James Fox and the Whig Opposition in 1792
Authors: Butterfield H.
Published: July 2016

If the year 1792 has come to be remembered for political crises which made it one of the turning-points in English history, it has been famous also for the auspiciousness of its commencement, the optimism and the promise that characterized its earliest months. In January and February Pitt repeatedly drew the attention of parliament to the increasing prosperity of the country and the flourishing state of the public revenue; and opposition did not pretend to deny this, but merely said that the prosperity ‘was no feather in the minister's cap’, since it was due to circumstances independent of government. Even that aggressive admirer of the French Revolution, Earl Stanhope, wrote to a Frenchman: ‘We are already free… and England is now the richest, the most prosperous and—climate apart—the happiest country in Europe.’ Even that determined reformer, the Rev. Christopher Wyvill, joined the crowd of witnesses to the country's good fortune, though he speculated that if a great European war should break out, ‘the English people would probably then renew, but in a louder tone’, the cry for parliamentary reform. Pitt attributed the prosperity to the rise of machinery, the credit facilities, the ‘exploring and enterprising spirit of our merchants’, and the mode in which money was continually being fed back into industry. He claimed that something was due, however, to the internal tranquillity of the nation and ‘the natural effects of a free but well regulated government’. The correspondence of the year 1792 often gives evidence of the sense of rising prosperity; and to this would be attributed on the one hand the general attachment to the constitution, and on the other hand the indifference of the nation to matters of foreign policy.
IV. The Foreign Policy of Prince von Bülow, 1898–1909
Authors: Morrow Ian F. D.
Published: July 2016

On 21 June, 1897, the German Ambassador at Rome, Herr von Bülow, found on his table in the Palazzo Caffarelli a telegram summoning him to Kiel. On his arrival there he was greeted on board the Hohenzollern by the Emperor William II with the words: “My dear Bernhard, I'm sorry for you and even more for the Contessina (for this is what the Empress Frederick and her children always called my wife) but you must go to the front. The Man from Baden has betrayed me.” In conversation William II proceeded to explain that Marschall von Bieberstein—the “Man from Baden”—had forfeited the Imperial confidence by intriguing with the Social Democrats and the Centre to introduce parliamentary government into Germany. In consequence, the Emperor added, he proposed to appoint Bülow Secretary of State for Foreign Affairs in succession to Marschall von Bieberstein. Bülow was too clever to accept the proffered office at once and contented himself by pleading that, “until I had thoroughly informed myself about our international situation by studying the documents of the Foreign Office, I could not possibly give a definite answer as to whether I could conscientiously accept the post offered to me or not. Besides, I would have to collect my thoughts before I made the final decision, not through any kind of timidity, but because I felt my responsibility towards the country and the throne.”
II. Benefice and Vassalage in the Age of Charlemagne
Authors: Ganshof F. L.
Published: July 2016

A Number of important studies have been published in recent years on the subject of benefice and vassalage during the early Middle Ages, and it may consequently be worth while to re-examine some of the problems raised by the origin and early development of these two institutions. I have dealt elsewhere with, the circumstances which tended towards their union early in the eighth, century, under the early Carolingians, In this article I hope to indicate at least the principal features of the history of benefice and vassalage during the reign of Charlemagne. The Influence which Charles exercised on the public and private institutions of the Frankish state was so definite and far-reaching as fully to justify the limitation of the subject-matter of my inquiry to the space of a single reign. Unfortunately the lack of adequate sources, though less serious than for the preceding period, renders the task of tracing their history a somewhat difficult one. Although the capitularies contain a relatively large number of provisions that deal specifically with these institutions, we have very little information as to how they worked in practice. The narrative sources, with the exception of two or three texts, tell us little or nothing. We have to fall back on the evidence of charters, though even these only rarely, when dealing with a dispute or legal proceeding, throw some light on the subject. This is what we might in any case expect, for the essential feature of the entry of a person into vassalage or of the gift of a benefice was the oral act, and not any embodiment of it in writing.
IV. Note on the Origin of Lord John Russell's Despatch of Oct. 16, 1839, on the Tenure Of Crown Offices in the Colonies
Authors: Butler J. R. M.
Published: July 2016

No system of self-government at all resembling the practice of the mother country was possible in the British colonies so long as the heads of the colonial departments and the members of Governors' councils held their offices nominally during His Majesty's pleasure, but actually for life. Hence it has been generally recognised that Lord John Russell's despatch of October 16, 1839, to Governor-General Poulett Thomson, which put an end to this state of affairs, marks a stage of immense importance in the transition to Responsible Government. The Colonial Office papers in the Public Record Office show that the pronouncement of the new principle, made at a turning-point of Canadian history, originated in a decision on a minor incident in a remote and lately colonised part of the empire.
II. Some Remarks on the Image of Edessa
Authors: Runciman Steven
Published: July 2016

Christian relics have never received their due attention in history. Historians, justly suspecting the authenticity of the more eminent of them, have tended therefore to put them all to one side, forgetting that even a forgery can have its historical value; and only the theologians have taken notice of them, in their relations to the apocryphal improvements on Christian thought and story. This neglect is undeserved; for there are some of them that not only throw important sidelights on the history of their times, but even have played an active part in the moulding of that history.
III. Peterborough and Barcelona, 1705 Narrative and Diary of Col. John Richards
Authors: Trevelyan G.M.
Published: July 2016

The swing of the pendulum of historical opinion about Peterborough is in less violent oscillation than formerly, and is tending to become stationary at a middle point. The original belief that he both took Barcelona in 1705 and relieved it in 1706, and much else besides, based on Freind's and Carleton's contemporary eulogies, still held the field when Macaulay wrote his essay on the War of Succession in Spain, in the intervals of speech-making at his Leeds election of 1832. The reaction culminated in the refusal to believe that Carleton's memoirs were written by Carleton at all, or that Peterborough either took or relieved Barcelona; these later views found their extreme expression in Colonel Parnell's War of the Succession in Spain (1888), a work both learned and able, but very far from judicial.
III. The Uneasy Neutrality. A Study of Anglo-Spanish Disputes Over Spanish Ships Prized 1756–1759
Authors: McLachlan Jean O.
Published: July 2016

As the Anglo-Spanish dispute which developed between 1756 and 1761 over the taking of Spanish ships by British privateers was undoubtedly one of the chief causes of the declaration of war by King Charles III in 1761, the Spanish story of these events is of considerable interest. A full treatment of the whole problem of the prizing of neutral ships has been promised by Mr Richard Pares, but the present study may be of some interest as showing the Spanish views of the situation as shown in the correspondence between the Spanish Chief Minister, General Richard Wall, and the Spanish chargé d'affaires in England, Don Felix Abreu.
IV. Bentinck and Education I. Macaulay's Minute
Authors: Spear Percival
Published: July 2016

The popular mind loves the dramatic and the macabre, and so it has come about that the two events of British Indian History which the man in the street is aware of are the Black Hole of Calcutta and the Great Mutiny. When there were no Mutiny horrors to contemplate, their place was taken by the legend of Tipu Sultan; even in 1831 Ram Mohan Roy was followed about by crowds in London crying Tipu Tipu. It has been a misfortune for British Indian understanding that these two events seemed discreditable to India; for though Seraja-Daula is now acquitted of responsibility for the Black Hole, and the military revolt theory of the Mutiny generally prevails, the popular legend continues. The well of Cawnpore is remembered where the well of Ujnalla is forgotten.
The Human Rights Act 1998: Bringing Rights Home
Authors: Palmer Stephanie
Published: July 2016

The Labour government has quickly acted on its election promise to introduce a bill of rights into domestic law. The Human Rights Act 1998 partially incorporates the European Convention on Human Rights (ECHR) into United Kingdom law. This legislation is part of a wider constitutional package including devolved government for Scotland and Wales and reform of the House of Lords. The government’s programme is intended to modernise and indeed transform the British constitutional structure. According to the government, the Human Rights Act will bring rights home. Individuals will be able to argue for their Convention rights in the United Kingdom’s own courts and tribunals and judges will be able to adjudicate directly on Convention issues. All new laws will be carefully scrutinised to ensure compatibility with Convention rights.
‘Process and Production Method’-based Trade Restrictions in the EU
Authors: Davies Gareth
Published: July 2016

States regulate products. They may make access to their market, or favourable rates of taxation, conditional on compliance by products with rules that aim to protect safety, health, morality, the environment and so on. When these rules concern the physical composition of the product, regulating, for example, the ingredients in foodstuffs or the chemicals used in toys, or the recyclability of batteries,Cassis de Dijon, and its legislative and jurisprudential spawn, tell the European lawyer how to approach the resulting barriers to trade.
Judicial Review and EC Merger Control: Reflections on the Effectiveness of the System with Regard to the Standard of Review and Speed
Authors: Fountoukakos Kyriakos
Published: July 2016

The central problem [with the current system of EC merger control] is that the Commission acts as investigator, prosecutor, judge, jury and executioner, with little meaningful right of appeal or other form of redress from a prohibition decision, since cases take a considerable time to reach the Community Courts, and even if the Courts overturn a prohibition decision, the case is only remitted to the MTF, as only the Commission has the power to clear a Community concentration. By that stage of course, the result is entirely academic, since the proposed deal in question will be long dead.

The above quotation from the Confederation of British Industry’s (CBI) response to the European Commission’s (hereinafter, ‘the Commission’) Green Paper on the reform of the EC Merger Regulation in 2002 still summarises quite aptly the criticism expressed in recent years by members of the business and legal community about what the critics perceive as a serious shortcoming in the current system of EC merger control: the lack of effective, meaningful in practical terms, judicial control over the administration’s decisions in this area.
The Relationship between the EU and Member States in Constitutional Case Law: A Comparison between Western and Eastern Europe
Authors: Grewe Constance
Published: July 2016

It is indeed a crucial moment now that Central and Eastern European (CEE) countries have begun to join the EU. The Maastricht Treaty was itself, in several respects, a turning point in European construction; Member States then became aware of the increasing influence of EU law and started to defend their autonomy against the ‘attacks’ stemming from it. With the accession of the CEE states, the ‘Solange story: a story about national constitutional courts resisting a straightforward surrender of national legal sovereignties, and insisting on their own role as guardians of any further transfer of powers from the national to the European level’, can now enter into ‘its chapter 3’. National or constitutional identity is the main arm of resistance, and these national reactions require a rethinking of the relationship between national and European law.
In a World of Their Own? Justice and Home Affairs Opt-Outs and the Treaty of Lisbon
Authors: Peers Steve
Published: July 2016

After Each New Treaty amendment, it comes time to hand out the ‘Major Awards’ for the worst-drafted new Treaty provisions. For the Treaty of Lisbon, there is a clear winner: the provisions concerning the opt-outs of the UK, Ireland and Denmark from the EU’s Justice and Home Affairs (JHA) policies. These already-complex provisions have been made further complex in order to address, on the one hand, the demands of these Member States for further flexibility as regards JHA policies, and on the other hand, to clarify the position if these Member States wish to opt out of further developments regarding rules into which they have already opted.
People-Trafficking: Some Reflections on the EU Legislation, and its Implementation in the UK
Authors: Spencer John R
Published: July 2016

This chapter examines the efforts in Europe and and the UK to deal with the problem of people-trafficking. As readers will see, it is in five Sections. The first sets the scene by explaining what ‘people-trafficking’ is, and outlining the history of international attempts to repress it and to relieve its human consequences. The second describes the recent legislative attempts to deal with it in Europe, and in particular, the EU Framework Decision of 2002. The third examines the UK legislation enacted with the aim—not entirely accurate, as we shall see—of implementing it. The fourth looks at the way the UK legislation is working. And the final section concludes with two general reflections. It is based on a study carried out in 2007 for ECLAN, the European Criminal Law Academic Network. Any reader who reaches the end with a thirst for further knowledge will find further refreshment in the book that resulted from the ECLAN study, which was published earlier this year.
Administrative Law and Multi-Level Administration: An EU and US Comparison
Authors: Donnelly Catherine
Published: July 2016

The aim of this chapter is to assess what, if anything, administrative law can demonstrate about multi-level administration in the European Union and the United States. The particular focus of the examination is not on the content of administrative law in each legal order, but rather on the impact of EU and US federal administrative law on the Member States and US States respectively. It will be seen that, while US federal administrative law has primarily only influential effect on US States, EU administrative law is often binding on Member States. This observation challenges presumptions often made, particularly in political science, as to the degrees of inter-penetration in administration in the EU and the US. It will be argued that the cause of divergence is largely derived from differing judicial attitudes as to the fundamental tenets of the co-operation between the different levels of administration, and indeed, more general understandings of federalism in the two jurisdictions. In this way, this study also provides a useful prism through which to consider integration in the EU and US more broadly.
Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850
Authors: Dyson Matthew
Published: July 2016

This chapter explores the relationship between tort law and criminal law. In particular it tracks one line of developments in the procedural co-ordination of criminal and civil law: the ability of criminal courts to award compensation for harm. It is a study of legal change or development: how and why law has evolved from the middle of the nineteenth century through to the present day. The chapter is also comparative, looking at the English and Spanish legal systems. The history of powers to compensate has highlighted two fundamentally different ways to resolve claims based on a concurrently tortious and criminal wrong. The English system has slowly moved from disparate and piecemeal provisions to a general if under-theorised system. On the other hand, Spain created a novel and complete system of liability to be administered by the criminal courts. This chapter seeks to trace and explain this development with a view to understanding how much civil and criminal law can perform the same function: compensation.
An Overview of Regulatory Innovation in the European Union
Authors: van Calster Geert
Published: July 2016

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.
The ‘New’ French Constitution and the European Union
Authors: Boyron Sophie
Published: July 2016

For a long time, French constitutional law did not appear to concern itself unduly with the European Communities and the process of European integration: the French Constitution did not contain any reference to the European Communities and the Conseil constitutionnel had little involvement with international treaties and their enforcement as a result of an early decision. However, the ratification of the Maastricht Treaty in 1992 triggered a process of deep constitutional change in France. Since then, the text of the French Constitution has been repeatedly amended to respond to the quickening pace of European integration. Furthermore, the Conseil constitutionnel has totally transformed its control of the constitutionality of international treaties. An assessment of these constitutional changes seems opportune at this juncture. More specifically, an investigation into the manner in which the French constitution reacted to the changing European Union helps cast some light on the impact of European integration on national constitutions.
Normative Interactions and the Development of Labour Law: A European Perspective
Authors: Robin-Olivier Sophie
Published: July 2016

In important recent cases dealing with labour law issues, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) relied on a combination of international, European and domestic sources to justify their decisions. In Viking and Laval, the ECJ recognised that the right to take collective action as a fundamental right protected by EU law. In Demir and Baykara v Turkey, the ECtHR decided, for the first time, that the right to bargain collectively is an essential elements the right to form and to join trade unions covered by Article 11 of the European Convention for the protection of Human Rights. This chapter considers the reliance on multiple sources of law in this series of cases and questions the ‘combination method’ used by European courts to identify or interpret human right provisions. It argues that globalisation of legal sources in the area of labour law does not necessarily lead to ‘globalisation’ of labour law, allowing common solutions or, at least, harmonised solutions to come to life. The outcome of normative interaction is not universal labour law but instead largely depends on which court decides the case. Therefore, litigation strategies in the field of labour law should make use of the potential of normative interactions without ignoring the opportunities offered by the diversity of courts.
Who Exactly Benefits from the Treaties? The Murky Interaction Between Union and National Competence over the Capacity to Enforce EU Law
Authors: Dougan Michael
Published: July 2016

The question of exactly who benefits from the Treaties, in the sense of which range of persons and bodies should be recognised as legally competent to enforce any given provision of Union law before the national courts, is surprisingly murky. This lack of clarity is due partly to the inherent complexity of the question, as well as to the complication posed by the interdependent relationship between the Union and national legal orders. The confusing approach adopted by the Court of Justice compounds the matter. This chapter discusses some observations on why this is a question which poses particular policy challenges for the Union legal order, before going on to summarise the relevant tools employed by the Court of Justice when addressing issues about the decentralised enforcement of Union law by private and public actors. It is argued that, despite the apparent confusion, it is possible to construct a workable division of labour between the role of Union law in defining its own protective scope (on the one hand) and the discretion of each Member State over access to the courts for the enforcement of Union law (on the other hand). A detailed analysis of the case law is conducted in order to identity the weakest links in the system, or at least those which suffer from the greatest degree of doctrinal and conceptual neglect. The question of who exactly benefits from the Treaties, in the sense of enjoying rights of standing to enforce Union law before the national courts, presents both surprisingly difficult challenges and promising research issues for the future.
Transparency and Clear Legal Language in the European Union: Ambiguous Legislative Texts, Laconic Pronouncements and the Credibility of the Judicial System
Authors: Sharpston Eleanor
Published: July 2016

The legal system of the European Union generates particular problems of opacity and lack of clarity. This chapter seeks to identify some of the causes of those problems. First, the nature of the texts with which the Court of Justice deals—’Union legislation’, orders for references from national courts and submissions to the Court—is examined. Problems here include the multi-lingual and multi-cultural backgrounds of those involved in the process, vagueness in legislative drafting and lack of clarity in references and submissions placed before the Court. Secondly, the Court’s own judgments and the opinions of its Advocates General are considered. Problems here include the factors governing the drafting of a single consensus judgment and the fact that it is not always easy to strike the correct balance between speed and quality. Lastly, a number of suggestions for change are offered. The obstacles are not insuperable and improvements can be made.
Years an EU Lawyer—Apologia Pro Vita Sua Or EU Law—A 40-Year Journey and Still Motoring
Authors: Dashwood Alan
Published: July 2016

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.
Identifying an Unlawful Margin Squeeze: The Recent Judgments of the Court of Justice in Deutsche Telekom and TeliaSonera
Authors: Jones Alison
Published: July 2016

The chapter will consider what a margin squeeze is, whether it is appropriate for a competition authority to try and prevent margin squeezes using competition law rules and, if so, what tests can be used to identify an unlawful margin squeeze and to distinguish it from legitimate competition on the merits.
The United Kingdom and the European Union: Inevitably Drifting Apart?
Authors: Reding Viviane
Published: July 2016

I am delighted and truly honoured to be able to speak to you tonight to deliver the 2014 Mackenzie-Stuart lecture. President Barroso was speaking in London last Friday where he said: ‘The European Union would not have become what it is today if it weren’t for British politicians and entrepreneurs, British thinkers and British ideas’. Scholars from this University and from its Centre for European Legal Studies have contributed enormously. Looking just to the Union’s Courts, Judges Lord Mackenzie-Stuart, David Edward, Konrad Schiemann, Christopher Vajda and Nicholas Forewood, Advocates-General Francis Jacobs and Eleanor Sharpston are true architects of our Union.
Tax Law and the Internal Market: A Critique of the Principle of Mutual Recognition
Authors: Ghosh Julian
Published: July 2016

The principle of mutual recognition tests a potential breach of internal market treaty provisions and restricts the scope for a Member State to justify a breach by reference to what happens, or has happened, in a different Member State. The principle of mutual recognition is a distinct principle to that of non-discrimination and does not apply by reference to the functional equivalence of Member States’ regulatory regimes. Mutual recognition has been developed by the Court of Justice of the European Union (CJEU) as a distinct principle (perhaps a general principle) of EU Law, quite separate to the settled principles of non-discrimination and prohibition of obstacles to market access. The principle of mutual recognition entrenches a neo-functionalist model of the Union project and acts as an accelerant to the harmonisation of the domestic regimes of Member States which are subject to its application, in areas where harmonisation is realistically possible. In areas where harmonisation is not realistically possible, the application of the internal market by reference to the principle of mutual recognition sets aside non-internal-market-compliant Member States’ regulatory provisions, leaving an unsatisfactory space in these regulatory regimes. However, the principle of mutual recognition is, in the light of the application of the principles of non-discrimination and the prohibition of obstacles to market access, quite unnecessary and operates to frustrate legal certainty and the legitimate expectations of the Member States.
Consumer Protection in EU Residential Mortgage Markets: Common EU Rules on Mortgage Credit in the Mortgage Credit Directive
Authors: Josipović Tatjana
Published: July 2016

For many years now, there has been an attempt in the European Union to create a common legal framework for mortgage credit contracts and cross-border activities in the mortgage financial sector. One of the greatest challenges has been the establishment of a corresponding level of consumer protection in EU residential mortgage markets. This issue has become particularly important at the time of financial crisis. Consumers are increasingly exposed to the risk of losing their homes because of failing to fulfil, in due time, their obligations arising from mortgage loans, and thus losing confidence in the EU financial sector. Therefore, the European Union has intensified its efforts to improve consumers’ ability to inform themselves of the potential risks when entering into mortgage loans and mortgaging their real property. On 4 February 2014 the EU adopted the new rules on mortgage credits in the Mortgage Credit Directive. The main objective of the Directive is to increase the protection of consumers in EU mortgage markets from the risks of defaults and foreclosures. A higher level of protection must be ensured by consumers’ increased information capacity related to mortgage credits, as well as by developing a responsible mortgage lending practice across the EU. The Mortgage Credit Directive is also aimed at contributing to the gradual establishment of a single internal market for mortgage credits. In this chapter, the author analyses previous and current attempts by the EU to establish a uniform market of mortgage loans, and assesses the possible impact of the Mortgage Credit Directive on the protection of consumers in the market of mortgage credits and on the development of cross-border activities in the mortgage financial sector. Special emphasis is placed on the possible impact of the new EU rules on mortgages on national protection measures aimed at consumer protection at the time of financial crisis. The transposition of the Mortgage Credit Directive will undoubtedly contribute to a higher level of consumer protection when consumers enter into home loan contracts. However, the question arises whether, because of different levels of harmonisation of some rules laid down in the Directive, its implementation will actually contribute to an increase in cross-border home loans. The possibility for Member States to opt for increased consumer protection in some aspects of credit agreements when implementing the Directive, or the existence of different options for the exercise of individual rights that they may use cannot bring about an integration of mortgage credit markets.
Fundamental Rights, General Principles of EU Law, and the Charter
Authors: Tridimas Takis
Published: July 2016

The purpose of this chapter is to explore selected aspects of the relationship between the general principles of EU law and the Charter of Fundamental Rights of the European Union. The chapter first looks at the expansion of fundamental rights in EU law and the importance of general principles by reference to three principles which have provided fruitful grounds for judicial activism: the right to judicial protection, the principle of non-discrimination, and the right to personal data. It then examines the sources of fundamental rights under Article 6 TEU and the relationship between Charter rights and general principles. Finally, it explores a pivotal issue in EU constitutional discourse, namely, the scope of application of the Charter and the general principles of law. The chapter concludes by observing that, far from declining in importance, the general principles of law continue to be an integral part of judicial methodology; that, following the introduction of the Charter, the CJEU applies a heightened level of judicial scrutiny; and that it favours a centralised approach opting for an autonomous interpretation of the Charter, granting it precedence over national constitutional norms, and understanding broadly its scope of application.
Prohibited Grounds of Discrimination under EU Law and the European Convention on Human Rights: Problems of Contrast and Overlap
Authors: Bamforth Nicholas
Published: July 2016

Both EU law and the European Convention on Human Rights contain protections against invidious forms of discrimination. EU law has long been concerned to combat discrimination on the grounds of sex and nationality, and has more recently begun to tackle discrimination on the bases of race, sexual orientation, age, religion or belief and disability. Article 14 of the Convention is also concerned with these grounds—some explicitly, some through judicial interpretation—as well as others such as birth status. However, at a level of detail the two bodies of law differ in many ways: for example, in the contexts in which they apply, in their treatment of justifications for prima facie acts of discrimination, and in the extent to which direct and indirect discrimination are prohibited. It is thus a matter for debate how far they in fact overlap, or have the potential to do so. Furthermore, given that it is a shared concern of EU law and the Convention to combat invidious forms of discrimination, their respective anti-discrimination protections might be felt to provide a particularly strong illustration of the extent to which there are similarities and divergences between the two bodies of law. In this sense, anti-discrimination law offers an illuminating case study of the intersections and differences between the two bodies of ‘European’ law, both at European level and within the domestic legal systems of EU Member States.
The Many Meanings of ‘Competition’ in EC State Aid Law
Authors: de Cecco Francesco
Published: July 2016

In 2001, the Irish carrier Ryanair and the Walloon regional government reached an agreement the terms of which appeared to be attractive for both sides. Ryanair would commit towards operating a number of its flights from Charleroi airport. In return it would receive a 50 per cent reduction in the amount of landing charges charged by the Walloon regional government, the owner of Charleroi airport. As a result, Ryanair would decrease its operating costs and gain an advantage vis-à-vis its competitors, while the airport and its owner would benefit directly and indirectly from the effects of an increase in passenger traffic. When the agreement was examined by the Commission, the Walloon Region sought to defend the measure by arguing that it had acted in its capacity as owner of the airport and that, viewed in this light, the agreement was not an infringement of the state aid rules, but an economically sound transaction. The Commission rejected this point, holding instead that, in entering into the agreement, the regional government had ‘placed itself in a situation of confusion of powers’, as the commercial need to attract Ryanair to its jurisdiction had caused it to derogate from the generally applicable regulatory framework. Given that the regional government had exercised a power of a regulatory nature, it could not invoke commercial rationality to justify its actions.
‘What Has It Got to Do Necessarily with the European Union?’: International Family Law and European (Economic) Integration
Authors: Meeusen Johan
Published: July 2016

Family law has long been considered a domain which virtually escaped any impact from European Community law. Insofar as European cooperation was aimed at economic integration in the context of the EEC, the arguments in favour of keeping it that way seemed obvious and convincing. Today, the relationship between European law and (international) family law is often viewed in an entirely different way. The explanation for this shift lies in the broad, functional approach adopted by the European Court of Justice (ECJ) to the free movement of persons in the European Union, as well as in the transformation of the Community from the EEC into the EC and its incorporation into a ‘European Union’ (EU) not exclusively oriented towards economic integration.
EC Law and International Agreements of the Member States—An Ambivalent Relationship?
Authors: Schütze Robert
Published: July 2016

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

By contrast with ordinary international treaties, the E … C Treaty has created its own legal system which, on the entry into force, became an integral part of the legal systems of the Member States and which their Courts are bound to apply.