bluuebunny/crossref_metadata_2025 huggingface dataset:
V. The First German Colony and its Diplomatic Consequences
Authors: Aydelotte William Osgood
Published: July 2016

In April 1884 Prince Bismarck, chancellor of Germany, suddenly broke away from his long maintained anti-colonial policy, and inaugurated the German colonial empire by placing Angra Pequena under German protection. Angra Pequena was a small harbour in the middle of the unoccupied territory that later became the first German colony, South-West Africa, a long coastal stretch which England did not particularly desire and had several times refused to annex. It had only one really good harbour, Walfisch Bay, which England already possessed. Furthermore, the senior members of the second Gladstone ministry, which was in power in 1884, were generally opposed to new colonial adventures. In such circumstances, it was to be expected that Bismarck's new departure would meet with little or no opposition from the British Government, and that the formation of the comparatively modest German colonial empire would not cause a ripple in the cordial diplomatic relations existing between the two countries at that time.
II. The English Wool Trade in the reign of Edward IV
Authors: Power Eileen
Published: July 2016

The importance of the English wool trade in the middle ages is so well recognised that it is difficult to remember that its history is still largely unwritten. This is particularly true of the century before the advent of the Tudor dynasty to the throne. The careful researches of Professor Tout have thrown some light upon the origins of the Staple system in Edward II's reign and those of the late Professor Unwin and his seminar upon the wool trade in the reign of Edward III, but in this, as in most other branches of economic history, the period of the Lancastrian and Yorkist dynasties is an almost unworked field. Ample materials for an investigation of the subject exist, but many of the most important are still hidden in English and foreign archives and much laborious spade work remains to be done before the whole story can be told. That story really involves two distinct problems, which for convenience's sake can be separated—first the institutional history of the Staple and its financial and other relations with the government, and secondly the history of the wool trade, that is to say the technical and financial organisation of the trade, the persons engaged in it, their relations with wool growers at home and wool buyers abroad, and the dimensions of the trade year by year, as reflected in the customs accounts. This article is an attempt to sketch the second of these subjects only, and that for a very limited period. The reign of Edward IV has been chosen because it was a period of considerable commercial activity and because there happens to exist a particularly important collection of material relating to the wool trade at this time.
II. John de Warenne and the quo waranto Proceedings in 1279
Authors: Lapsley G.
Published: July 2016

The story of John de Warenne's rusty sword and the blustering speech with which he proffered it before the justices in eyre in the quo waranto proceedings in 1279 long held it s place both in serious and popular accounts of Edward I's reign. It put, indeed, in dramatic, perhaps even in theatrical, form the essence of the struggle between the king's theory of sovereignty which was sound law and the barons' claims to hold their franchises by prescription which in a good many cases was sound history as indeed the king was at length constrained to admit in the statutes of 1290. Maitland apparently did not question the tale, and the extract from the chronicle in which it occurs held its place in eight successive editions of Stubbs' Charters. But the most eminent of our living historical critics entertained doubts, and when in 1910 Dr Round published his work on Peerage and Pedigree, which was relished by the general public almost as much as it was valued by the learned world, it was found that the rusty sword, with many other tales of the Conquest, was dismissed from the canon of history. When, three years later, Professor Davis produced a ninth edition of Stubbs' Charters—a work no less valued by the world of scholarship than Dr Round's, though it may be doubted whether it was much read for entertainment in other quarters—the well-known extract had silently disappeared.
IV. Treaties of Guarantee
Authors: Headlam-Morley J. W.
Published: July 2016

The subject of treaties of guarantee has been discussed with great ability and exceptional knowledge by Sir Ernest Satow in a recent number of the Cambridge Historical Journal. It is, however, one of such historical interest and also of such immediate practical importance, that it may perhaps be permissible to offer some additional observations upon it, and I hope that the value of what I have to say will not be diminished by the fact that I shall be chiefly occupied with what may at first appear to be largely a question of language. After all, treaties are the legal instruments by which the relations between states are defined, and we know how much difficulty may arise, even in private affairs, from the incorrect wording of legal documents and from carelessness in the use of technical expressions.
III. Loans to the Lancastrian Kings: the Problem of Inducement
Authors: McFarlane K. B.
Published: July 2016

The problem that I am going to discuss this afternoon is one which must surely have exercised the minds of all those who have given a moment's thought to the financing of the Hundred Years' War. What conclusions have been reached it would be hard to say. For apart from two or three illuminating though hardly conclusive pages by Mr A. B. Steel, to whom my indebtedness should soon be obvious, nothing seems to have been printed on this subject in recent times. Yet unless we have some idea why men lent large sums of ready money to the English kings of the later Middle Ages, we must approach the political history of the period at a considerable disadvantage. To an increasing extent as the fourteenth century advanced and preponderantly throughout the course of its successor these lenders were natives and drawn from all sections of the propertied classes. The king's treatment of his creditors was therefore bound to affect his relations with his most powerful subjects. It would be surprising if his success or failure in meeting his obligations did not markedly influence their attitude towards his rule.
VI. Three Cambridge Scholars: C. W. Previté-Orton, Z. N. Brooke and G. G. Coulton
Authors: Powicke Maurice
Published: July 2016

I have been invited to write something about three friends of mine who, each in his own way, helped to maintain and advance medieval studies in Cambridge during the last generation. Two of them, Charles William Previté-Orton and Zachary Nugent Brooke were bulwarks of the history school as teachers and lecturers, the one for twenty-six, the other for thirty-four years. Both were scholars of St John's College and, although Brooke was six years younger than his friend, were contemporaries as undergraduates; both were editors of the Cambridge Medieval History; each in succession was Professor of Medieval History. It was not easy to think of one without passing on in thought to the other, as a man might take the short walk from St John's to Caius. The third scholar, who survived both the others, was George Gordon Coulton. Born in October 1858, a fortnight before Queen Victoria's proclamation of 1 November announced to the people of India that the territories, possessions and executive powers of the East India Company had been transferred to the Crown, he lived to know that the end of British rule in India would come within a year or two. He was the last survivor of a noble company of medievalists, to whose society, it must be confessed, he owed but a casual, though in general a respectful, allegiance. He was four and a half years younger than John Horace Round, three years younger than Thomas Frederick Tout, eighteen months younger than Reginald Lane Poole, four months younger than Hastings Rashdall, the scholar and friend whom he especially revered.
IV. Thomas Attwood and the Economic Background of the Birmingham Political Union
Authors: Briggs Asa
Published: July 2016

At a meeting of the Birmingham Political Union in May 1833, the principal guest, Daniel O'Connell, congratulated his audience on having carried the Reform Bill through to success, for, he said, ‘it was not Grey and Althorp who carried it, but the brave and determined men of Birmingham’. In the heat of the struggle, even some of the whig ministers were willing to admit in the famous words of Russell that ‘it is impossible that the whisper of a faction should prevail against the voice of the nation’. One of them told Thomas Attwood in May 1832 that ‘we owe our situation entirely to you’. Lord Durham maintained that ‘the country owed Reform to Birmingham, and its salvation from revolution’. Earl Grey himself, after the safe passing of the bill, thanked Attwood for all that he had done ‘to maintain popular support for the measure outside the House of Commons’.
III. Capitalism and the Decline of the English Gilds
Authors: Marshall T. H.
Published: July 2016

[This article has been inspired by Dr Stella Kramer's recent book, The English Craft Gilds (Columbia University Press, 1927), and is, in fact, an inquiry into it. In this, her second work on the subject, she has dealt with the last phase, from the middle of the sixteenth century to the middle of the eighteenth. Her material is drawn principally from the published records of towns and gilds, of which she has made so thorough an investigation that any one who has the temerity to follow in her steps will have an unprofitable task. To one who, some years ago, covered a fraction of the same ground with the same object in view and arrived at some tentative conclusions, the temptation to use Miss Kramer's exhaustive study to test and amplify those conclusions is irresistible.]
III. Economical Reform and ‘The Influence of the Crown’, 1780
Authors: Christie Ian R.
Published: July 2016

In 1780 the protagonists of Economical Reform openly admitted that their principal aim was not economy but the reduction of the influence of the executive in the House of Commons. In pursuit of this object the Rockingham party rallied other opposition groups in Parliament in support of its elaborate programme of constitutional purification—a programme embracing Crewe's Bill for the disfranchisement of revenue officers, Clerke's Bill for the exclusion of contractors from the House of Commons, and Burke's Establishment Bill, which provided for the abolition of numerous offices and sinecures, and for a strict limitation of the grant of royal pensions at pleasure. ‘The saving of money’, declared Dunning, on 21 February, ‘is but a secondary object. The reduction of the influence of the Crown is the first.’ And on 8 March, Thomas Townshend similarly asserted, that ‘the first great consideration was the lessening of the influence of the Crown, which in the opinion of the people, and he believed, a majority of that House, had enormously increased of late years, and particularly so since the accession of his present Majesty.’
IV. The Action Française Movement
Authors: Balfour R. E.
Published: July 2016

The Action Française dates from 1898—the year when the agitation for the revision of the trial of Dreyfus was at its height—and was an offshoot of the Ligue de la Patrie Française, one of the many anti-Dreyfusard organisations. The leaders of the Patrie Française having announced that in their agitation against Dreyfus they would do nothing illegal, the more extreme members, led by Henri Vaugeois, seceded and founded the Action Française, declaring that where the salvation of the country was at stake they would stick at nothing.
I. The First Wave of the Drang Nach Osten
Authors: Dvorník F.
Published: July 2016

The idea of expansion towards the East runs through the whole history of Germany like a scarlet thread, and often lends its successive phases a similarity of design and a certain consistency. The history of this expansion is one of the most fascinating epics in European history and it is the Germans themselves who started calling itDrang nach Osten, ranking the results of this drive among the greatest achievements of Germany's national past. Truth to tell, there is an audacity about thisDrang, a fierce and ominous dynamism that cannot be denied, for it created a new Germany from the Elbe to the Oder and beyond, deep into the Vistula region. No other Western European nation can boast such a feat, though in the East the Russians accomplished something similar, only on a vaster scale, when they spread out the old Russia from Kiev, Novgorod and Moscow towards the Volga, the Urals and the Siberian steppes as far as Vladivostok. It is, indeed, a dramatic and tragic turning-point in modern European history when these two nations, which developed their grandiose eastward expansion in their own independent spheres, come to a head-on crash in the present bloody and merciless struggle.
V. The Crown and Foreign Policy. Queen Victoria and the Austro-Prussian Conflict, March-May, 1866
Authors: Mosse W. E.
Published: July 2016

The part played by Queen Victoria in the conduct of foreign affairs during the early phases of Bismarck's unification of Germany, and more particularly during the crisis of 1866, has been but incompletely revealed in her published correspondence.1 The editors of the Queen's letters, obliged to make a careful selection from abundant manuscript material, could not, from the nature of their task, give a comprehensive account of the Queen's influence on the conduct of diplomatic affairs. Nor has any subsequent historian examined in detail the Queen's tenacious struggle for the success of her German policy. Hardie's study, the only one which covers the subject, is based, on the diplomatic side, exclusively on the Queen's published letters.
II. Some Aspects of the History of the Chantries during the Reign of Edward III
Authors: Wood-Legh Kathleen L.
Published: July 2016

Of all the institutions that grew up in the medieval church none has received so little attention from English scholars as the chantries. That they played an important part in the religious life of this country before the Reformation is indeed generally recognised; but our historians have done little more than to indicate the purposes for which chantries were founded, and to point out that their numbers increased greatly towards the end of the Middle Ages. In the present essay an attempt is made to render our knowledge of the chantries less vague by discussing at length some of the more important problems of their history, giving a detailed account of them during a single half century. For this purpose the reign of Edward III has been chosen, partly because its close is practically contemporaneous with our most important literary references to the chantries, those of Chaucer and Langland, but mainly because, since the Black Death occurred within a few years of the middle of this period, it affords an opportunity of studying the effects of the pestilence on this phase of English life.
III. Bankruptcy before the Era of Victorian Reform
Authors: Welbourne E.
Published: July 2016

Bankruptcy law in early nineteenth-century England called less loudly for reform than did the machinery of its courts. The “Commissioners in Bankruptcy,” spoken of in evidence before parliamentary committees as “London's main commercial court,” sat in a room in the Guildhall, always inadequate for their needs, but at times overrun by cooks when it was claimed as an extra kitchen for municipal feasts. There were seventy commissioners, grouped in fourteen lists of five. The post was in the gift of the Lord Chancellor, and as it was agreed that £300 a year was the most commissioners could expect to earn, it is not surprising that they were respectable rather than distinguished men, though in ambitious youth men as distinguished as Lord Macaulay might be glad of the Chancellor's patronage. The income, consisting of a guinea fee for each meeting, was brought to its maximum by expedients which destroyed the dignity and impaired the efficiency of the court. Of the five men, the necessary majority of three sat, while the other two went about other work, which might at times be that of practising as counsel before other “lists.” Guineas were easily added to by adjournments which increased the number of meetings. It was less obvious that they might be multiplied by three, by hearing before each set of three commissioners three bankruptcies, but this seems generally to have been done. Thus in a crowded room, at many tables, many bankruptcies marched on, at varying speeds, broken by frequent adjournment, which brought extra fee but at times better progress by resort to a private room in a coffee-house near by.
The Double Life of Effectiveness
Authors: Nebbia Paolisa
Published: July 2016

As a general principle of Community law elaborated by the European Court of Justice (hereinafter, ECJ or ‘the Court’), effectiveness ‘requires the effective protection of Community rights and, more generally, the effective enforcement of Community law in national courts’: its origins—it has been argued—‘lie in the interpretative techniques of the Court which, even at an early stage, favoured a liberalised construction of the Treaty provisions so as to ensure theireffet utile’. In fact, the roots of the principle of effectiveness can be found in the seminal case ofVan Gend en Loos, which, without expressly naming that principle, provided the conceptual tools that have moulded its construction throughout the Community case law.
Viking and Laval: An Introduction
Authors: Barnard Catherine
Published: July 2016

While the accession of the 10 former Communist states was generally greeted with enthusiasm by much of the European political elite, the trade union movement in the West was concerned that cheap Eastern European workers would flood Western European labour markets, thereby undercutting Western wage rates. As a result, a number of the old Member States (but not the UK, Ireland and Sweden) imposed transitional restrictions on the right of individuals to come to the West to work. However, these restrictions did not extend to employers—in particular service providers—coming from the new Member States, bringing with them lower paid Eastern European labour to fulfil a contract.
Justice in Haste, Justice Denied? The European Court of Justice and the Area of Freedom, Security and Justice
Authors: Rosas Allan
Published: July 2016

This chapter considers the ECJ procedure and, in particular, the length of time required for cases to be heard, especially in proceedings pertaining to the Area of Freedom, Security and Justice, an area in which the saying ‘justice delayed, justice denied’ has particular force. It examines in particular the new urgent procedure, conceived in order to enable the Court to decide a case falling under the Area of Freedom, Security and Justice within an expedited time-frame. It concludes that, while undue haste should be avoided, lengthy time-frames for court proceedings are more often than not a sign of poor case management. The Area of Freedom, Security and Justice provides a special incentive for the ECJ to be vigilant as regards the length of court proceedings.
Exclusion, Invasion and Abuse: Competition Law and its Constitutional Context
Authors: Francis Daniel
Published: July 2016

The orthodox view of antitrust, or competition, law is that it should be interpreted and enforced purely to maximise economic efficiency. This chapter argues that it is by no means so clear that the maximization of efficiency should be the sole aim of competition law, either as a matter of common-law tradition or as a matter of ‘original’ legislative intent. Moreover, such a narrow approach neglects the important social and political components and consequences of antitrust policy and adjudication. This chapter further argues that antitrust law exhibits a striking resemblance, in many ways, to constitutional law, in particular to the extent that it constitutes a social and political response, administered by courts, to three particularly problematic applications of power—the ‘exclusion, invasion and abuse’ of the title. The first section of the chapter introduces these themes. In the second section, the exclusion-invasion-abuse model is described and the implications of each broad type of rule are explored. In the third section, the historical development of modern antitrust law is traced in order to show that the ‘pure efficiency’ standard lacks any credible historical claim to particular authority or authenticity. The fourth and final section, a brief survey of competing normative accounts of antitrust law offers in order to demonstrate the extent to which a myopic focus on efficiency can occlude the underlying policy consequences of antitrust law and policy-making.
The European Union and the Globalisation of Criminal Law
Authors: Mitsilegas Valsamis
Published: July 2016

In the new post-Cold War security era, there is a perception that the nature of cross-border security threats has changed. The need to respond to these new threats has led to a proliferation of multilateral international and regional treaties in this area, as well as unilateral demands made by the United States post-9/11. We have, then, seen a process of globalisation of criminal law, a field traditionally linked to State sovereignty. This chapter examines, first, EU action with regard to UN multilateral conventions and the impact of those conventions on internal EU law, as well as the impact of EU action within the framework of the regional treaties of the Council of Europe; secondly, the interrelationship between Union law and the global production of norms in criminal matters by the UN Security Council and by the Financial Action Task Force; thirdly, bilateral cooperation between the EU and the US, in particular in connection with the transfer of Passenger Name Records data; fourthly, the question of compliance by the EU in this area, in both the internal and the external context; and, fifthly, the Court of Justice’s approach to the protection of fundamental rights when global criminal law is engaged. The EU has managed to take centre stage in international developments in the field of global criminal law through a clear commitment to multilateral negotiations as well as a clear political will to implement at the Union level norms agreed internationally without a high degree of transparency. The Court of Justice has also been reluctant to overturn Union security decisions in the name of fundamental rights. The coming into force of the Lisbon Treaty will eliminate some complexity in this area, but not all, and it still remains to be seen whether in the process of globalisation of criminal law the European values proclaimed in Article 2 of the new EU Treaty will be promoted or compromised.
Economic Sanctions, Procedural Rights and Judicial Scrutiny: Post-Kadi Developments
Authors: Tridimas Takis
Published: July 2016

The judgment of the Court of Justice of the European Union in Kadi is of defining constitutional importance. The Court understood the EU Treaties (at the time, the EC Treaty) as establishing their own constitutional space, asserted the autonomy of EU law vis-à-vis international law and held that responses to emergencies should be handled through, rather than outside, the bounds of the EU Treaties. The judgment is predicated on liberal democratic ideals and views respect for legality as a sine qua non in times of emergency. This chapter seeks to discuss selected case law developments after Kadi. It focuses on the effect of invalidity of sanctions on third parties, issues pertaining to the validity and interpretation of Council Regulation 881/2002/EC, economic sanctions against nuclear proliferation and corresponding developments in the case law of the UK Supreme Court. It does not deal exhaustively with post-Kadi case law. Section I provides a brief introduction to the judgment in Kadi. Section II explores the effect of the ruling on third parties. Section III discusses a selection of recent case law of the Court of Justice and the General Court, and section IV explores in some detail the judgment of the UK Supreme Court in Jabar Ahmed.
Tipping the Balance: International Courts and the Construction of International and Domestic Politics
Authors: Alter Karen J
Published: July 2016

The proponents of international courts (ICs) expect that creating formal legal institutions will help to increase respect for international law. International relations scholars question such claims, since ICs have no tools to compel state compliance. Such views are premised on the notion that states have unique preferences that ICs must satisfy in order to be effective. The tipping point argument is premised on the notion that within each state are actors with numerous conflicting preferences. ICs can act as tipping point actors, building and giving resources to compliance constituencies—coalitions of actors within and outside of states—that favour policies that happen to also be congruent with international law.
Criminal Justice in the Post-Lisbon Era
Authors: Corstens Geert
Published: July 2016

Having briefly traced the history of EU criminal law, this chapter first examines the new rules governing the competency of the EU in criminal law matters deriving from the Lisbon Treaty. Europol and Eurojust, the EU institutions that have been created with a view to fighting trans-border crime are examined, and the pros and cons of a possible further institution, the European Public Prosecutor are discussed. A final section examines the impact of the EU Charter, and the need to establish in this area an order of precedence between the EU Charter and the European Convention on Human Rights.
Multi-faceted Single Legal Personality and a Hidden Horizontal Pillar: EU External Relations Post-Lisbon
Authors: Govaere Inge
Published: July 2016

The Lisbon Treaty has fundamentally revised the external relations of the EU in pursuit of more visibility, coherence and consistency. The EU is, for instance, given a single legal personality, the pillar structure is (formally) abolished, new functions are created to reinforce its external representation and external policies appear to be streamlined. But is there more to it than meets the eye? A critical legal assessment is given of the major Treaty modifications relating to the EU external relations whilst addressing two underlying issues. First it is questioned whether the Member States have really given up their traditional reluctance to share fully the international scene with the EU. It is argued that the Lisbon Treaty in fact means to redress the balance in favour of intergovernmentalism under CFSP. A second crucial and related issue links to the silent dialogue with the CJEU to be discerned in the Lisbon Treaty. It wavers between the codification of important case law, such as Kadi, and attempts at containing or even reversing case law which was more prejudicial to the Member States’ interests, such as the Ecowas judgment. In so doing the Lisbon Treaty again raises interesting yet complex legal questions which will most likely necessitate further clarification through case law.
Posted Workers in Europe from a Private International Law Perspective
Authors: Merrett Louise
Published: July 2016

Cases involving the posting of workers will inevitably involve international elements and therefore issues of private international law. Historically, it has been assumed that English employment law is territorial: in particular section 204 of the Employment Rights Act 1996 provides that the provisions of the Act apply irrespective of the law applicable to the contract. This contribution examines this proposition through the perspective of private international law principles, and also considers the compatibility of section 204 with the private international law rules in the Posted Workers Directive and the new definition of overriding mandatory rules in the Rome I Regulation.
Exit Taxation as an Obstacle to Corporate Emigration from the Spectre of EU Tax Law
Authors: Panayi Christiana Hji
Published: July 2016

In this chapter I examine how the cross-border movement of companies may be affected by some tax rules and I consider the impact of EU law on such rules. The examination is in the context of the case law of the Court of Justice and the limited EU direct tax legislation. I assess how these affect the cross-border movement of companies as well as their investment strategies. I conclude by considering whether this is a satisfactory way of dealing with the issues. The contents of this chapter are based on materials available up to 1st March 2011.
The Rebirth of the EU’s Charter of Fundamental Rights
Authors: Peers Steve
Published: July 2016

Since the conferral of binding legal effect on the EU’s Charter of Fundamental Rights with the entry into force of the Treaty of Lisbon, the Court of Justice has taken an active role in developing the Charter as the leading source of human rights rules in the EU legal order. While the Court has begun to clarify some important points relating to the Charter, a number of significant issues still need to be addressed.
What is in an Index? A View from a European Orientated Lawyer
Authors: Samuel Geoffrey
Published: July 2016

Anyone familiar with French legal education will know that what a common lawyer would call the contents page to be found at the beginning (often in summary form) or at the end (often in detail) of a French textbook or monograph on law is more than a mere guide for browsers and readers. It forms le plan, that is to say the epistemological framework the intellectual importance of which is equal to the substance of the work. It is what endows the book with its scientific credibility and any thesis or textbook lacking a coherent cartesian plan will by definition lack intellectual credibility. But what of the other guide provided in many academic books, namely the index? Is this guide nothing but a guide, never to be allowed to aspire to an epistemological status like that accorded to le plan? Or is an index, with its strictly alphabetical ordering, capable of having an epistemological role?
The Role of Private Enforcement within EU Competition Law
Authors: Dunne Niamh
Published: July 2016

Private enforcement is an increasingly prominent element of EU competition law. The forthcoming Directive on damages actions aims to strengthen and, to a degree, harmonise procedures for private competition litigation, while recent case law of the Court of Justice reaffirms the centrality of the right to claim compensation for losses stemming from breach of the competition rules. Moreover, this right has been presented as an essentially unitary one, whereby any victim of any type of competition infringement has, in principle, the right to claim damages. This chapter reviews the evolving framework, and considers, specifically, the role for private enforcement within the overall system of EU competition law. Taking into account the Commission’s efforts to facilitate and increase private enforcement, the emerging EU public enforcement framework, as well as the substantive EU competition rules more generally, this chapter argues that, contrary to the rhetoric, private enforcement is a mechanism best adapted, and arguably most appropriate, for use only in the context of hard-core cartels. It is further suggested that the gap between rhetoric and reality is not problematic as such, yet difficulties may arise insofar as these divergences conflict with the principle of effectiveness.
From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?
Authors: Dashwood Alan
Published: July 2016

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.
The Impact of Regulatory Competition on Measures to Promote Pluralism and Cultural Diversity in the Audiovisual Sector
Authors: Gibbons Thomas
Published: July 2016

Communications are being transformed by the combination of digital technology and a global media economy. There is increased convergence between traditional broadcasting, cable distribution, satellite broadcasting, telecommunications and the Internet, which has boosted the sheer volume of programming and information that can be conveyed, and extended its reach at both domestic and international levels. Many will see these developments as an opportunity to promote new media products and to rationalise their operations in a global market place. Others may be concerned that the need to compete successfully in that market place will threaten the survival of local and national cultural identity. In terms of policy and regulation, states may be tempted to emphasise trade and industrial policy, intended to improve transnational competitiveness, at the expense of media and cultural policy, aimed at protecting pluralism and diversity.
The Current Legal Framework on the Right to Seek Health Care Abroad in the European Union
Authors: Hervey Tamara K
Published: July 2016

Cases involving patients such as Mrs Yvonne Watts, who travelled from the UK to France for a hip replacement to avoid a ‘waiting list’ in the UK, relying on rights in European Union (EU) law, attract high levels of media attention. While the vast majority of patients are either unwilling or unable to travel across borders to receive health care, it is clear that some patients are seeking health care abroad. Although data on patient mobility within the EU are significantly limited, nevertheless, a relatively steady, small but not insignificant number of patients are moving across borders within the EU to receive health care. This paper considers the current legal framework on the rights in EU law of those patients who seek health care in another Member State. As the right to seek private health care abroad is (largely) non-contentious, and has been a well-established feature of EU law since at least the mid 1980s, the focus of this paper is on publicly or quasi-publicly funded health care.
The Problems of Trans-border Evidence and European Initiatives to Resolve Them
Authors: Spencer John R
Published: July 2016

When a criminal case with trans-border ramifications is to be prosecuted within a given state, the following three problems typically arise:

—

bringing the defendant, currently abroad, to that state, to enable the case against him to be tried;

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obtaining relevant evidence from other jurisdictions;

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persuading the courts of the state where the defendant is to be tried that they can use it.

The first of these problems is in principle the most important. Unless a legal system is prepared (as some were in the past) to try defendants in absentia and then punish them in effigy, the defendant’s physical presence within the jurisdiction of the court is usually required in order to bring the mechanism of the criminal law to bear upon him.
Fiscal State Aid: On Tax Exemptions and Reimbursement of Taxes
Authors: Werner Philipp
Published: July 2016

Fiscal state aid is an important aspect of state aid law. Aid granted though fiscal measures accounted for more than 40 per cent of aid granted in 2003–5. According to a recent study, allegations that fiscal measures constitute illegal aid account for more than 50 per cent of state aid cases before national courts. The European Commission and European as well as national courts are thus increasingly being called upon to consider the extent to which state aid rules apply to fiscal measures.
The Rise and Expressions of Consistency in EU Law: Legal and Strategic Implications for European Integration
Authors: Herlin-Karnell Ester , Konstadinides Theodore
Published: July 2016

The principle of consistency has a prominent place in EU law. In the Treaty of Lisbon, it constitutes an umbrella under which a number of legal principles of EU law follow as corollaries. Consistency manifests itself within both horizontal and vertical levels of governance. This chapter will unpack this principle and will focus on the broader implications of consistency for the division of powers in EU law. In doing so, the authors aim to discuss the rise of consistency in EU law and decrypt its various constitutional expressions in order to determine its scope of application. Two notions of consistency are presented: a formal one that appears in the Treaty of Lisbon and a strategic one, prominent in the case law of the Court of Justice of the European Union (CJEU). It is argued that consistency is relevant to both traditional (integrationist) and alternative (differentiated) routes to European integration. The chapter concludes by discussing whether the undefined nature of ‘consistency’ puts it at risk of becoming an empty vessel.
The EU and the European Social Charter: Never the Twain Shall Meet?
Authors: Khaliq Urfan
Published: July 2016

This article examines the relationship between the EU and the Council of Europe’s Social Charter. It considers the differing approaches to the protection of economic and social rights and the relationship between the two legal orders. It further examines whether the EU should consider acceding to the European Social Charter so as to ensure the effective protection of economic and social rights.
The Citizenship Paradigm
Authors: Kochenov Dimitry
Published: July 2016

This chapter suggests the deployment of the concept of European citizenship as a means of integration alongside the internal market, proposing the citizenship paradigm of European integration to inform the Union’s future. This proposal, based on a combination of the initial promise of European unity and the potential of EU citizenship, is not purely utopian but is directly rooted in the primary law as well as in the purpose of the integration project.
The Ambiguity of Multi-Level Governance and (De-)Harmonisation in EU Environmental Law
Authors: Lee Maria
Published: July 2016

This chapter explores the ambiguous allocation of authority in the governance of two areas of environmental protection: industrial pollution and genetically modified organisms. Ambiguity, that is, a difficulty in asserting that any single actor has the final word on a subject, is inevitable in the EU’s multi-level governance system and is not necessarily undesirable. These two examples demonstrate that even in the face of concerted efforts to introduce a formal hierarchy, the need for collaboration around softer norms persists.
Proportionality in EU Law: A Balancing Act?
Authors: Sauter Wolf
Published: July 2016

The proportionality principle plays a key role in constitutional review of public acts. Its use legitimises the constitutional claims of EU law in the context of a multi-level polity system. The application of proportionality in the EU differs based on whether legal acts of the EU or of its Member States are concerned. In the former case, a manifestly disproportionate test is usually applied, while in the latter case, a least restrictive means test (LRM) is normally used. Both are conditioned by the degree of integration achieved. In future, the use of the principle may involve increasing attention being paid to individual rights.
The Community Courts and Openness Within the European Union
Authors: Ragnemalm Hans
Published: July 2016

Government by the people presupposes that citizens are fully aware of public matters and properly informed. Nowadays, this is well understood and increasingly accepted. However, there is still disagreement as to how citizens are to check their government and what the limits of such control should be. In my view, it is essential that this scrutiny is generally available to all citizens and that it is provided in binding legal terms, the application of which is subject to legal appeal. However, a less stringent standard of scrutiny is often provided. Indeed, confusion between concepts is patent in this field and overshadows what is really at issue—the recognition of a fundamental right for citizens, which forms a basis for the exercise of several other rights. The right of citizens to review the exercise of public power is ultimately the foundation of both the principle of democracy and popular sovereignty.
The Concept of European Union
Authors: Allott Philip
Published: July 2016

We, human beings and human societies, become what we think we are. If we have conflicting ideas of what we are, we become a puzzle to ourselves and to others. If we have no clear idea of what we are, we become what circumstances make us. Conceptual dissonance and conceptual drift have been characteristics of the life-story of the three societies (called European Communities) which are now contained in a society called the European Union. A member of a select but ominous class of international social systems which also includes the Holy Roman Empire and the League of Nations, the European Union is a paradoxical social form, namely, an unimagined community.
Joint Competence of the European Community and its Member States and the Dispute Settlement Practice of the World Trade Organization
Authors: Heliskoski Joni
Published: July 2016

One of the principal achievements of the 1994 Agreement establishing the World Trade Organization was the new mechanism for dispute settlement, embodied in the Understanding on Rules and Procedures Governing the Settlement of Disputes. While its predecessor, the General Agreement on Tariffs and Trade of 1947 (and the 1979 Agreements resulting from the Tokyo Round of Multilateral Trade Negotiations) had already evolved, to a considerable degree, from a negotiating forum for the conduct of world trade diplomacy to a “judicial” system properly so called, the WTO Dispute Settlement Understanding nevertheless marked a decisive step forward.
Prospects for European Company Law After the Judgment of the European Court of Justice in Centros Ltd
Authors: Sørensen Karsten Engsig
Published: July 2016

The ruling of the European Court of Justice in C-212/97Centros Ltdv.Erhvervs- og Selskabsstyrelsensuggests that the right of establishment enshrined in Article 43 (ex Article 52) of the EC Treaty includes the right to incorporate a company in the EC Member State with the most favourable company laws. The case provides a platform for arguing that choice of place of incorporation within the European Union is at the absolute discretion of business operators, after which point branches may be set up in any other Member State. Even if all activities are conducted in the Member State where the branch is situated, rather than in the Member State of incorporation, no abuse of Article 43 will arise, and the Member State in which the branch is located may be in no position to impede the establishment of a business which has utilised the vehicle of a foreign company.
Two Types of Regulatory Competition: Competitive Federalism Versus Reflexive Harmonisation. A Law and Economics Perspective on Centros
Authors: Deakin Simon
Published: July 2016

There is a growing debate about the desirability of allowing greater scope for regulatory competition inside the European Union. The argument for doing so is that competition between the Member States in the production of legal rules will lead to greater economic efficiency than can be achieved through the harmonisation of standards. The Court’s ruling inCentrosappears to mark a significant move in the direction of inter-state competition in company law. In deciding that a company founded by Danish citizens in the UK, thereby avoiding Danish minimum capital requirements, could not be denied the right to register an overseas branch in Denmark for the purposes of trading there, the Court has rekindled a long-running debate about thesiège réeldoctrine.
EC Transport Law and Policy: A Status Report
Authors: Greaves Rosa
Published: July 2016

Although, in the history of the European Community, the period 1958 to 1985 will not be remembered for remarkable achievement as far as the freedom to provide transport services is concerned, the nineties have redressed the balance, even though a complete Common Transport Policy (CTP) has not yet been achieved. This paper seeks to summarise the current status of the CTP and to focus on two longstanding problems. These problems are the proposals to finance, and then maintain, transport infrastructures and the debate on the Community’s external competence in the field of transport, particularly sea and air transport. However, an appreciation of what has been achieved in the nineties cannot be done without recalling briefly some of the historical background.
Freedom of Information and Transparency as Administrative and Constitutional Rights
Authors: Harlow Carol
Published: July 2016

Freedom of information is an idea which has been high on the political agenda of western democratic societies for many years. It has been cultivated, propagated and sometimes misused in self-interested fashion by the media. Its meaning, always imprecise, has fluctuated. It has been recycled under the American terms of “openness” and “Government in the Sunshine”. Recently it has been once more recycled under the fashionable term “transparency”. In the European context, this imprecision has been detrimental to the development of logical and sturdy principles concerning transparency and access to information. What has emerged from the conceptual confusion has been a reliance on the more restricted administrative law rights of access to information in contexts where a constitutional right to transparency would have been more appropriate, with a consequential impoverishment of the transparency concept in EC law.
Access to Governmental Information and the Judicial Process: United Kingdom Law and the Influence of Europe
Authors: Hare Ivan
Published: July 2016

In the course of attempts by the Thatcher administration to restrain the publication of Spycatcher, the memoirs of a former member of the security and intelligence services, the United Kingdom’s most senior civil servant, the Cabinet Secretary, was subjected to several days of intense cross-examination before Justice Powell in New South Wales and in the High Court in London. Sir Robert Armstrong’s testimony ranged across the recent history of government reactions to the proposed publication of sensitive information by former members of the security services and has since become a significant piece in the jigsaw of the British constitution.
The Corpus Juris Project—has it a future?
Authors: Spencer J. R.
Published: July 2016

My paper on the Corpus Juris project in the first volume of this Yearbook closed by saying, in effect, “Watch this space!” At the end it told how, at the time of writing, the European Parliament and Commission had re-engaged the original team that drafted the proposals, plus some others, and constituted them as a Comité du suivi with instructions to find out how hard or easy it would be to integrate the Corpus scheme into the existing legal systems of the Member States. And it also told how the House of Lords Select Committee on the European Communities had begun to carry out a study of the Corpus project.
The European Court of Justice, More than a Teleological Court
Authors: Llorens Albertina Albors
Published: July 2016

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.