bluuebunny/crossref_metadata_2025_split huggingface dataset:
Exclusion, Invasion and Abuse: Competition Law and its Constitutional Context
Authors: Francis Daniel 
Published: October 2012

AbstractThe 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.
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: October 2012

AbstractThe 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.
People-Trafficking: Some Reflections on the EU Legislation, and its Implementation in the UK
Authors: Spencer John R 
Published: October 2012

AbstractThis 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: October 2012

AbstractThe 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.
Dealing withVikingand Laval: From Theory to Practice
Authors: O’Donoghue Robert , Carr Bruce 
Published: October 2012

AbstractThis chapter examines the recent controversial decisions of the ECJ inVikingandLaval, focusing on how they are likely to be applied in practice. Firstly, it considers the rules regarding the applicable forum and the procedures for going to court in the UK, then it looks at when it can be said that an employer’s economic rights under EU law have been engaged and when there has been a ‘restriction’ on those rights. It goes on to address the core issue of the circumstances in which a ‘restriction’ on the relevant EU economic right pursues a ‘legitimate aim’ and then considers the key battleground in future cases falling underVikingandLaval, namely whether the industrial action is ‘proportionate’. Finally, it addresses an important, but unresolved, issue: the extent to which industrial action in breach of Articles 43 or 49 EC could give rise to liability in damages.
The ‘New’ French Constitution and the European Union
Authors: Boyron Sophie 
Published: October 2012

AbstractFor 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.
Risk and the European Convention on Human Rights: Towards a New Approach
Authors: Hilson Christopher 
Published: October 2012

AbstractThe aim of this chapter is to provide an initial attempt at analysis of the place of risk within the case law of the European Court of Human Rights (ECtHR) and, where appropriate, the Commission, focusing on the related issues of public concern and perception of risk and how the ECHR dispute bodies have addressed these. It will argue that, for quite some time, the Court has tended to adopt a particular, liberal conception of risk in which it stresses the right of applicants to be provided with information on risk to enable them to make effective choices. Historically, where public concerns in relation to particular risks are greater than those of scientific experts—nuclear radiation being the prime example in the case law—the Court has adopted a particularly restrictive approach, stressing the need for risk to be ‘imminent’ in order to engage the relevant Convention protections. However, more recently, there have been emerging but as yet still rather undeveloped signs of the Court adopting a more sensitive approach to risk. One possible explanation for this lies in the Court’s growing awareness of and reference to the Aarhus Convention. What we have yet to see—because there has not yet been a recent, post-Aarhus example involving such facts—is a case where no imminent risk is evident. Nevertheless, the chapter concludes that the Court’s old-style approach to public concern in such cases, in which it rode roughshod over rights to judicial review, is out of line with the third, access to justice limb of Aarhus.
Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850
Authors: Dyson Matthew 
Published: October 2012

AbstractThis 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.
English Law and the EuropeanIus Commune1450–1650
Authors: Ibbetson David 
Published: October 2012

Sometime around the year 1469, Giovanni Andrea, the Papal Librarian at the Vatican, noted that the Middle Ages were at an end and the modern world had just begun. From his standpoint at the intellectual centre of Christendom, a major transition was occurring.All across Europe, Law, too, was in a state of transition at this time. We may take as our starting point an early piece of evidence of these changes which comes from the Southern Netherlands. It comes from the small village of St Peters, a village in which legal disputes were decided by local alderman, men who had had no formal legal training but who were very experienced in applying the customary law of the area. An issue had arisen whether a legal right of way had been gained by long use.
Constitutional Developments in Europe
Authors: Amato Giuliano 
Published: October 2012

Can we still speak of constitutional developments in Europe after the fall of the document called the ‘European Constitution’ in the French and Dutch referenda? Yes, we definitely can do so, for that document was not the founding act of a European constitutional order; it was a step(undoubtedly a very relevant one) in a process that has been ongoing for more than 40 years.The European Community was conceived as an international organisation based on the typical source of international law, a treaty among sovereign states. Inside the organisation the representatives of the Member States, namely their Ministers sitting in a common Council (more precisely, in the sectoral formations of it), were empowered to adopt the legally bindings acts of the Community.
Alexandre Kojève’s Hegelianism and the Formation of Europe
Authors: Kletzer Christoph 
Published: October 2012

Kojève once wrote in a reply to Leo Strauss that the philosopher who contemplates action faces a conflict that constitutes the only authentic tragedy left in the Christian or bourgeois world:[T]he tragedy of Hamlet and of Faust. It is a tragic conflict because it is a conflict with no way out, a problem with no possible resolution.One is inclined to add that the acting philosopher has a notoriously comic side, too, a side that has been exploited throughout the history of literature, from Aristophanes’ ‘The Clouds’ to the modern trope of the moronic impotence of the inept professor. But just as the comic fiction of Aristophanes’ ‘Clouds’ ultimately turned out to have had an actual tragic effect on Socrates’ life and death, so the modern depiction of the helpless philosopher is but a reflex on the troubled relation of philosophy and action.
EC Law and International Agreements of the Member States—An Ambivalent Relationship?
Authors: Schütze Robert 
Published: October 2012

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.
The Binding Force of Babel: The Enforcement of EC Law Unpublished in the Languages of the New Member States
Authors: Bobek Michal 
Published: October 2012

On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA:From the date of Accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before Accession shall be binding on the new Member States andshall apply in those States under the conditions laid down in those Treaties and in this Act.
The Problems of Trans-border Evidence and European Initiatives to Resolve Them
Authors: Spencer John R 
Published: October 2012

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;—obtaining relevant evidence from other jurisdictions;—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.
Harmonisation and Cooperation within the Third Pillar—Built in Risks
Authors: Asp Petter 
Published: October 2012

During the past nine years, co-operation in criminal matters within the European Union has developed in a rather fascinating way. Before the Maastricht Treaty, which entered into force in 1993, there was not much co-operation in this area at all.During the time before Maastricht, the focus was on the creation of the internal market, on the rules on competition etc. and criminal law did not fall within the scope of the Treaties. Thus, although Community law had (and has) some implications for national criminal law and despite the fact that some conventions were agreed upon within the European Political Co-operation one cannot really say that criminal law questions were formally on the agenda before Maastricht.
Caveat Emptor? Integrating the Schengen Acquis into the European Union Legal Order
Authors: Peers Steve 
Published: October 2012

It must be considered that there is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to initiate a new order of things. Niccolò Machiavelli, The PrinceIt was born, with much rejoicing, at a party near a quiet Luxembourg village; it died, alone and unlamented, on a desk in a non-descript Brussels office. On May 1, 1999, the fourteen-year old Schengen legal order finally breathed its last; but nothing quite became its life as the ending of it. For it was immediately reincarnated, with much confusion, into a legal system born in Rome over forty years ago. Long a byword for obsessive secrecy, unaccountability and complexity, the Schengen legal system has with one stroke moved from the “black market” of European integration into the mainstream.
The Influence of European Community Law on Public Law in the United Kingdom
Authors: Jacobs Francis G. 
Published: October 2012

It is a great privilege for me to give this lecture in honour of Lord Mackenzie-Stuart. I frequently had the privilege of appearing before him as counsel when he was judge at the European Court of Justice and also from 1984 to 1988 when he was President of the Court. It was on his departure from the Court in 1988 that I went to the Court as advocate general.Lord Mackenzie-Stuart, who has long been interested in the influence of European Community law on public law in the United Kingdom, had recently published a paper entitled “Recent developments in English administrative law—the impact of Europe?” In returning to that theme this evening I should like to update the story of developments in English administrative law where there may be a European impact. I will also venture, perhaps over-ambitiously, to look briefly at the new constitutional reforms, and to see if there may be a European impact there too.
Flexibility—The Experience So Far
Authors: Usher John A. 
Published: October 2012

The choice of the word “flexibility” in the title of this paper rather than the term “closer co-operation” introduced by the Treaty of Amsterdam is not accidental: since the general Amsterdam provisions on closer co-operation have not so far been used, a paper on the experience of those provisions since their entry into force would be very short—even if they have given rise to an extensive literature. It should nevertheless be remembered that under the terms of the Amsterdam Treaty itself there are situations where those provisions are deemed to have been used: under Article 1 of the Protocol Integrating the Schengen acquis into the Framework of the European Union, Belgium, Denmark, Germany, Greece, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland and Sweden, as signatories to the Schengen agreements, are “authorised to establish closer co-operation among themselves” within the scope of those agreements and related provisions; furthermore, under Article 5 of that Protocol, where either Ireland or the United Kingdom or both have not notified the President of the Council in writing within a reasonable period that they wish to take part,
“the authorisation referred to in Article 11 of the Treaty establishing the European Community or Article 40 of the Treaty on European Union shall be deemed to have been granted to the Member States referred to in Article 1 and to Ireland or the United Kingdom where either of them wishes to take part in the areas of co-operation in question”.
“Collective Amnesia” of Europe v. Engagement with Asia: Forging a Middle Path for Australia in the Age of Regionalism
Authors: Ward Angela 
Published: October 2012

“A country at odds with its region will be a defensive, anxious society, and one which is likely to be dependent on heavy defence expenditure. It will be a country, too, that will be unable to exploit fully its commercial and other potential”“… the collective amnesia concerning Europe in otherwise well-informed circles in Australia is a debilitating disease. It creates a lethargy where there is opportunity. It is blind to potential difficulties. It squanders a still-important reservoir of good will. Above all, it is a denial of identity. No group can be free until it recognises and comes to terms with its past, whether it likes it or not”.These two quotations, which appeared in articles published only twelve years apart, illustrate the complexity of contemporary challenges facing Australia’s international relations policy makers. It addresses the riddle of how to posit a still dominantly (ethnically and culturally speaking) European society, but one, which is located geographically nearer Asia, within the intricate web of inter-state intercourse which has become a hallmark of the modern world. The dilemma is, of course, far from new, but it has taken on enhanced proportions with the rise of regionalism, and the dissection of the planet into inter-governmental blocks.
A German View on the European Charter of Fundamental Rights: Effect on the Bundesverfassungsgericht
Authors: Schwarze Jürgen 
Published: October 2012

As already stated in the title of this article I will present a German view on the European Charter of Fundamental Rights. In Germany, like almost everywhere else, the views of lawyers hardly ever coincide—at least not completely. This is also true concerning a matter which has often been regarded as a typical German problem or to use the less diplomatic French expression, une querelle allemande: that is the need for a proper dogmatic concept of the protection of human rights in EC law.In the first part, I will follow the title to the letter and illustrate the legal effect of the Charter on the German Constitutional Court (Bundesverfassungsgericht) in a narrow sense. In the second part, I would like to extend my report, and consider the general acceptance of the Charter in Germany in a broader sense. I will conclude with a personal statement on the Charter.
On Discrimination and the Theory of Mandatory Requirements
Authors: Spaventa Eleanor 
Published: October 2012

According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements.This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.