bluuebunny/crossref_metadata_2025_split huggingface dataset:
Multi-faceted Single Legal Personality and a Hidden Horizontal Pillar: EU External Relations Post-Lisbon
Authors: Govaere Inge 
Published: October 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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