After a short description of the theoretical and philosophical background of the notions of citizenship and nationality, the contents of European Union citizenship will be described.  This notion of European Citizenship will then be compared to the notions of citizenship and nationality in several countries.  In this way, it will be possible to comprehend the scope and implications of European Union citizenship. 

Gas Directive (2003) stipulates that all consumers must be free to choose their gas supplier by July 2007.  The liberalisation of the gas market contributes to the establishment of a competitive internal market.  In general, the liberalisation process is aimed at increasing welfare, in particular consumer welfare.  Most of the literature relating to the liberalisation of the gas market is, however, primarily concerned either with the general economic notions of liberalisation and welfare, or with the specific legal aspects of the Gas Directive (2003).  This paper takes an interdisciplinary and novel approach: both the legal and economic ramifications of the Gas
Directive (2003) are examined.  More specifically, this paper reviews the main legal obligations emanating from the Gas Directive (2003) and examines their effect on (consumer) welfare in three Member States: Belgium, Germany and the Netherlands.  Full liberalisation was achieved in
the three Member States by July 2004, but the positive effects of liberalisation are predominantly evident in Belgium and the Netherlands.  The current structure of the German gas market seems to impede competition. 

Maastricht European Private Law Institute (M-EPLI) Working Paper 25/2011

Jaar:

2011

Abstract:

This article gives an overview of some of the key subjects of Book VIII DCFR: The Draft
Common Frame of Reference.  It focuses on the transfer of movables, the transfer by a
non-owner, i.e. the rules on bona fide acquisition, and the conflict between a seller who
delivered with a retention of ownership clause and the buyer who produces new goods
from the goods delivered to him.  This last subject is mainly treated in Book IX DCFR. 
The article explains the rules of the DCFR, criticizes the rules and compares them to
Dutch, German and French law, and the UK Sale of Goods Act. 

In this article, the desirability of a European private law is assumed.  What is disputed in this article is the way in which a ius commune must be achieved.  It is in particular questioned if the way now commonly envisioned to arrive at a ius commune is the right one.  To this end, first the current methods of integration and their inherent drawbacks must be examined.  The major part of the article will be dedicated to pointing out an alternative road towards a European private law, a road much more in tune with the historical development of the ius commune which existed before the codifications, a ius commune so eagerly invoked by the present advocates of a European private law.  This article was previously published in: Maastricht Journal of European and Comparative Law 5 (1998), p. 328-340. 

Maastricht European Private Law Institute (M-EPLI) Working Paper 23/2011

Jaar:

2011

Abstract:

Most of the Books of the Draft Common Frame of Reference (DCFR) have been subject to a so-called factual, case-based, assessment.  This paper contains the case-based assessment of Book VIII (titled 'Acquisition and loss of ownership of goods'), but also covers a small part of Book IX (which treats security interests on movables).  Purpose of the assessment is to take three hypothetical cases and see how the cases should be solved according to the rules of the DCFR and compare this outcome to the outcome in various national systems. 
The first case involves the sale of part of a bulk in which the buyer prepays half of the purchase price and in which the seller is declared insolvent before delivery.  The second case is about the sale and transfer through constitutum possessorium (attornment by the transferor) by a non-owner to bona fide purchaser.  In the third case goods have been sold and transferred under a retention of title clause and the buyer has used the goods to produce new products (specification) before having paid for the goods.  All three cases are solved according to Dutch, German, English and French law. 

Maastricht Journal of European and Comparative Law 7 (2000), p. 221-223

Beschrijving:

Recently, the final version of Parts I and II of the Principles of European Contract Law was published.  The text is a good starting point for further discussion on the future contents and shape of a European Contract Law.  The author feels that it is in this idea of a common text with which the various national legal orders can be compared and from which inspiration can be drawn, that the great value of the Principles lies. 

On 11 July 2001 the European Commission published its Communication on European Contract Law.  This Communication led the K.U. Leuven and the Society of European Contract Law (SECOLA) to hold a conference later that year in Leuven, with the Communication as its central theme. ' An Academic Green Paper on European Contract Law' is the product of that conference and contains the contributions of the conference speakers, sometimes in revised and expanded form, together with a general introduction by the book's editors and a contribution by Staudenmayer (European Commission) who as chair of the committee that prepared the Communication was responsible for its inception. 

Grundfragen der Vereinheitlichung des Vertragsrechts in der Europaeischen Union comprises an introduction and 6 chapters in which Lurger investigates various themes relevant to the harmonization of contract law in the EU. 

In the case C-210/06 Cartesio the ECJ decided that the outbound transfer of the central place of administration from a Member State (hereafter, MS) adhering to the real seat doctrine does not fall under the freedom of establishment when the national law applicable to that company does not change.  With this judgement the Court increased the scope for corporate mobility in two respects.  First, in the situation where there is an outbound transfer of the central place of administration with a simultaneous change of the applicable national law one can rely on the treaty freedom.  Second, in the same situation such a transfer may no longer result in companies being killed off at the border.  Moreover, the effect of this judgement is not to outlaw the real seat doctrine but, similar to Überseering, to limit the potential effects of the application of the real seat doctrine.  Interestingly the application of this judgement to the situation in which a company transfers its central place of administration from a MS adhering to the incorporation doctrine results in a potentially discriminatory effect. 

This article deals with the question of which state, in the case of overlapping jurisdictions, should investigate, prosecute and try offences in the European area of freedom, security and justice (choice of forum).  As binding instruments on the choice of forum currently have no priority for the European legislator, this issue is de facto left largely to the legislative and executive branches of the Member States.  Yet the question of whether this Member State discretion is acceptable de iure remains unanswered.  This article assesses the relevant EU instruments in light of the requirement of a 'tribunal established by law' (Article 6 ECHR; Article 47 CFR) and addresses the issue of whether this requirement, in addition to its role in the national context, is also of relevance for the AFSJ as a whole.  It is submitted that the choice of forum has a clear constitutional dimension, including a prominent role for the national and European judiciary as well.  Only if concerns of losing national sovereignty are overcome will it be possible to start the debate on what actions must follow. 

Combating sexual orientation and discrimination in employment: legislation in fifteen EU member states, Report of the European Group of Experts on Combating Sexual Orientation Discrimination, about the implementation up to April 2004 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. 

Over the last decade the interest in the quality of EU legislative instruments
has surged due to serious threats to the effectiveness of the legislation.  This
contribution makes an inventory of the policies and instruments that have
been put into place to improve quality of legislation and assesses their
character, orientation and effectiveness.  Any appraisal of these policies, so
the paper argues, is dependent on a perception of the basic functions
attributed to EU legislative instruments and the standards derived from it. 
The paper concludes that the present policies and instruments for Better
lawmaking have the ability to promote regulatory quality, but not necessarily
overall legislative quality. 

In my professional activities relating to Europe during the past 30 years, including teaching, law practice and government service, I have often discussed with European friends what it means to be a European, and how that compares to being Dutch, Czech, Italian, etc.  Invariably these conversations turn to deeper levels of identity, loyalty and political expectations.  The EU and European integration are always swirling around these conversations, and it is clear that none of my acquaintances ever expects to lose his or her nationality, even in a highly integrated Europe.  There are some lines, such as loss of ones language or culture, that nobody  even todays students who are possessed of a strong sense of European-ness  wants to cross.  But what about significant loss of political power at the national level?  Before the EU Constitution, such a prospect surfaced occasionally, especially at key moments of integration such as institution of the euro.  However, most Europeans continued (and still continue) to view the Union as an undertaking of sovereign nations.  The Constitution and its aftermath have renewed public interest in the overall course of European integration, and it is widely felt that the Convention on the Future of Europe proposed something more than just another treaty amendment.  Many Europeans believed that the Constitution represented a major change in the landscape  change was ultimately unacceptable in the form proposed.  The discussions raised by the Constitution have inspired the theme of this treatise: What are the existing dividing lines in the EU system, and how might the Constitution have caused them to shift?  Doubts over the Constitutions ratification never deterred the many scholars who analysed the document, and in the Introduction I address why the demise of the Constitution has not discouraged my own efforts. 

This executive summary provides an overview of the results of the research project entitled Effective defence rights in the EU and access to justice: investigating and promoting best practice, which was conducted over a three year period comme
ncing in September 2007.  The project partners are Maastricht University, JUSTICE, the University of the West of England and the Open Society Justice Initiative.  The project was funded by the European Community and the Open Society Institute.  The complete results of the research project and a full account of the analysis and conclusions are published in a book. 

Of all patrimonial rights, the right to property is considered by far the most powerful.  The owner is entitled to the exclusive use of the object, the word âuseâ is understood in a very wide meaning and the owner has a strong position as far as enforcement of his right is concerned.  He can reclaim the object from anyone (revindicatio), he is usually entitled to both positive injunctions (removal of objects from his premises) and prohibitory injunctions (in case of trespass).  And finally, when the owner has to put up with infringements, he is entitled to damages.  There seems, however, to be quite a gap between the position of the owner who is entitled to an injunction and that of the owner who has to bear infringements and is only entitled to damages.  In the first situation (injunction), the owner can vindicate his right according to a property rule which allows him to set the price for infringements.  In the second case (damages), the owner is left to compensatory standards.  In this paper, the consequences of the substantial shift in protection from an injunction to (different levels of) compensation will be illustrated with examples from the modern civil code of The Netherlands. 
Dutch law offers examples of different regimes of protection of the owner: a rather strong position (injunctive power) in the area of neighbour law, a relatively strong position in case of expropriation (a generous level of compensation), a typical liability rule (compensation according to objective standards) when a pressing societal interest prohibits injunctive relief, and a weak level of protection in case of a limited restraint of the owners capacity in case of a public development plan (only âfairâ compensation).  These examples, which show a sliding scale of levels of protection, raise the question whether the right to property is vindicated properly when injunctive power is left for some form of compensation in money.  They also raise the question according to which standards of compensation the right to property can and should be adequately protected. 

This article considers to what extent European law invites  or requires  inapplicability of the so called speciality principle in Dutch administrative
law.  I shall be concentrating on the question to what extent an administrative
authority considering whether or not to grant a permit is permitted, or required, to take public interests into account other than those of the permit system in question, and specifically those based on European law.  More particularly
I will be discussing whether an administrative authority is permitted, or even required, to refuse a permit or other decision on the ground that it is contrary to European law obligations, even when the objectives of the applicable European
law are broader than the assessment framework laid down by the national legislation on which the decision is based.  I will also be referring to the opposite situation: Is an administrative authority permitted, or perhaps required, to grant a permit or other decision, despite the constraints of the assessment framework of national law, in order to avoid taking a decision that contravenes European law? 

Maastricht European Private Law Institute (M-EPLI) Working Paper 26/2011

Jaar:

2011

Abstract:

In the EU there is an internal market in which there is free movement of goods.  The effects of internal market law are very wide because of the focus on economic integration.  Every aspect of national law is potentially subject to the influence of EU law.  This includes the application of internal market law to areas of property law that is usually considered a purely national competence. 
In the area of movable property law  surprisingly  there have been no actual cases.  When a property right is created in one Member State and the object on which it was created is moved to another Member State, the rules of private international law in combination with the application of national property law, which adheres to a closed system of property rights, will result in a loss of right.  This is a substantial hindrance to intra-Union trade.  Recent developments in the case law on the free movement of goods merit renewed attention to these types of fact patterns.  With a market access test, our argument of application of EU law becomes stronger.  The ECJ might pass judgment on private international law and national property law advancing the creation of a European property law. 

The EU is expected to be one of the buyers of emission rights on the international carbon market.  However, various policymakers, also in the EU, fear that hot air will be sold under the Kyoto Protocol, for instance by the Russian Federation.  Based on an institutional law and economics framework, we have tried to find out whether hot air trading should be seen as an environmental problem or not.  Two distinctions are crucial: one between a formal and informal interpretation of environmental effectiveness and one between an ex ante and an ex post perspective of hot air trading.  We conclude that hot air trading only disturbs effectiveness in an informal (or ethical) interpretation.  Moreover, the view that hot air trading is undesirable appears to assume an ex post perspective on the negotiated emission targets.  Finally, there is evidence that an increasing number of policymakers now perceives hot air trading as de facto unavoidable.  We find that these perceptions of hot air trading have shifted, as a result of external and internal pressures, from an ethical and ex post oriented outlook to a more formal and ex ante oriented one. 

In this article, it is investigated whether it is possible to predict the evolution of (parts of) national European private law systems toward a uniform private law.  In doing so, insights of evolutionary theory, economic analysis of law and (socio)biology are taken into account in what is essentially an interdisciplinary approach toward the evolution of European private law. 

Maastricht Journal of European and Comparative Law 6 (1999), p. 25-46. 

Beschrijving:

In this review essay, the author will try to categorise the present attempts at creating a European private law and critically discuss these attempts in the light of recent practical and theoretical literature. 

A plea for not abolishing the requirement of consent of the Netherlands parliament for binding decisions in the area of freedom, security and justice at the entry into force of the Lisbon Treaty; and equally a plea for the introduction of a broad parliamentary scrutiny reserve in all other areas. 

In this article it will be argued that good use of the instrument of deference
might help the EU courts to deal with the situation of pluralism that is currently visible in
the European legal order.  By means of deferential judicial review, the EU courts can pay
due respect to national constitutional traditions and to national legislative and policy
choices, thus preventing situations of real conflict.  In addition, deference enables the EU
courts to take into account the intricacies related to judicial review of norms drafted by
co-equal institutions or by national elected bodies.  Although the EU courts already make
use of some form of deferential review, they may use the instrument in a clearer and more
structured manner.  As a basis for the development of a European doctrine of deference,
a comparison will be made with the margin of appreciation doctrine devised by the
European Court of Human Rights.  Although this doctrine is certainly not fault-free, it
offers a number of advantages in terms of clarity and controllability.  If improved and
adapted on the basis of theoretical notions of procedural democracy, the doctrine might be
put to good use by the EU courts. 

Dispute settlement mechanisms have considerably advanced the European integration process.  This paper aims to scrutinise the main legislative provisions and structure of the dispute settlement mechanisms in the European Union.  It discusses the two different types of dispute settlement (judicial and alternative) as well as some mechanisms that have been designed to prevent disputes from arising.  It is submitted that the current EU model of dispute settlement does not offer ideal solutions but could serve as a learning process for other integration processes such as the Andean Community and the recently created South American Community of Nations. 

Fact-finding is invariably a part of administrative decision-making.  In administrative law procedures the courts in general refrain from repeating this fact-finding process but, instead, review the fact-finding procedure.  This contribution seeks to examine the requirements placed by the Community courts on the national courts reading of the facts in matters involving EC law.  In this context, a parallel will be drawn with the standards upheld by the Community courts as regards their own review of facts, in the context of direct appea
ls against decisions taken by the Community institutions.  It will be examined to what extent this review by the Community courts agrees or contrasts with the review performed in Dutch administrative law courts.  A more uniform method of reviewing facts could enhance the harmonisation and implementation of EC law. 

Together with institutional, functional and organizational independence, financial independence constitutes one of the cornerstones of central bank independence, the economic ratio of which has been demonstrated extensively in the literature.  In broad terms financial independence may be defined as referring to the legal and practical arrangements identifying the finances of a central bank and the extent to which the bank is subject to outside influence in this regard.  In the (legal) debate on central bank accountability, arguably arrangements relating to central bank finances have sometimes been treated in a rather step motherly fashion.  Yet, with the wider debate on good governance structures having reached central banking, more attention is paid to such detailed arrangements.  This contribution focuses on and aims at providing an overview on the impact on central bank independence of the legal arrangements relating to several aspects of central bank finances.  While government access to central bank money undoubtedly has an impact on the financial position of the central bank, this contribution focuses on those elements, which are arguably more directly linked to the financial position of a central bank, including capitalization and recapitalization, the determination of the central bank budget and the arrangements on profit and loss distribution.  In legal studies these arrangements have certainly received less attention.  To this end a critical assessment of the role which the legal basis of a central bank plays in enhancing or undermining the financial position of a central bank vis-à-vis government and, thereafter.  In this context, legal arrangements which do not only support the financial independence of a central bank but also enhance its accountability are observed.  Where appropriate, references are included to legal arrangements in existing central bank systems so to provide for negative and positive examples. 

The Cuban Liberty and Democratic Solidarity (Libertad) Act, also known as the Helms-Burton Act, envisages, amongst other things, putting an end to the "trafficking" in property having belonged to US nationals which was confiscated by the Cuban government on or after January 1, 1959.  Measures against Helms-Burton have been implemented by many states.  The European Community and the European Union have also legislated against this Act.  The EC measures against Helms-Burton are encompassed by a regulation dated November 22, 1996.  In addition to the EC regulation, the European Union took action against Helms-Burton on the basis of Articles J.3 and K.3 of the Treaty on European Union.  The Union decided that all of its Member States should take the measures they may find necessary to safeguard the interests of natural or legal persons within their territory which are not protected by the EC regulation (Official Journal 1996 L 309/7).  In order to understand the above European measures and the way in which they were enacted, some knowledge of the structure and competences of the European Community and the European Union is required.  In this note the author discusses the difference between the European Community and the European Union; the type of instrument encompassing the anti-Helms-Burton measures; the legal basis of the EC and EU measures against Helms-Burton; some related issues. 

The principle of subsidiarity lies at the heart of the European Unions strife to bring the EU closer to the citizen.  Yet, it appears to be failing to do so in its present form.  Therefore, the new Treaty Establishing a Constitution for Europe [hereafter: European Constitution] has the intention to bring it to the best possible position in this respect. 

National administrative authorities are obliged to leave provisions of national law unapplied when these are incompatible with EU law.  Irrespective of their position and powers under national law, national administrative authorities are supposed to comply with this so-called âCostanzo obligationâ as established by the Court of Justice.  This raises questions of both European Union law and national constitutional law, particularly with regard to the principle of legality.  This book explores three issues.  Which European obligations apply to national administrative authorities with regard to provisions of national law that are incompatible with directly effective provisions of European law?  Which national constitutional obstacles do they come across by giving effect to these obligations?  And how should the tensions between the European obligations and the national constitutional obstacles be solved?  The national law part of the research is focused on the legal systems of France, Germany and the Netherlands.  The last question combines the European and national perspective and reveals a clash, which gives rise to the question whether the obligation in the current form should be maintained. 

The Draft Common Frame of Reference for a European Private Law (DCFR) suffers from so-called methodological nationalism: the DCFR adopts a view of law and lawmaking developed for national jurisdictions and in doing so, it takes too little into account that what is best at the national level may not be optimal at the European one.  The argument is made by reference to three different features of the DCFR: the idea of comprehensive codification, the choice of the relevant rules and the way in which law is represented.  It is then argued that the DCFR should be presented in a differentiated way, dependent on whether its function is to create binding rules, offer a source of inspiration for legal scholarship and teaching or to take the first step towards the creation of an optional contract code. 

Maastricht European Private Law Institute (M-EPLI) Working Paper 27/2011

Jaar:

2011

Abstract:

These are exiting times for European Private Law.  In 2007 and 2008 the Study Group on a European Civil Code and the Research Group on Existing EC Contract Law presented the outline editions of the Draft Common Frame of Reference (DCFR), completed in 2009 with the full edition.  Although the DCFR mainly concerns contract law, other fields of private law are also included.  These include tort, unjust enrichment and property law.  Starting out as a contract law project to answer the call of the European Commission for a more coherent contract law, the drafters soon saw that other fields of private had to be in included to complete the effectiveness of the set of principles and rules they were preparing.  The result is an impressive body of principles and rules that can serve as the basis for the development of future European Private Law. 
European Property law is a part of this development.  For many decades the law of property law left alone mainly because the differences between the legal systems of the Member States were considered to be too diverse to reach easy harmonisation.  Different from contract law where many legal systems share a common heritage or have developed in a similar direction over time, the law of property in each Member State has remained static and somewhat unique.  When legal scholarship mostly focused on comparative law, the law of property was therefore less interesting to many.  Of course, a select group of researchers in Europe also compared systems of property law and research results were often surprising.  This research has led to the identification of princilpes and leading rules of property law, leaving many other aspects classiefied as technical rules.  Such analysis enables us to move beyond the technical differences and focus on the making of European property law.  Moreover, it also enables us to look beyond national law to European Union law and the effect this supranational system has on the property law systems of the Member State.  Examples of these include initiatives in emmission trading, wills and succession and matrimonial property law.  When considering the making of European Private Law, these effects should not be neglected.  In fact, the political reality of making European private law often means that through technical regulation more effects can be achieved.  This is therefore, not direct but indirect making of European Property Law.  The following will provide a short discussion on the direct making of European Property Law after focusing on some prime examples of indirect making of European Property Law.  Emission trading, wills and successions and matrimonial law will be used as examples of how often technical rules require substantive and doctrinal changes in the property law systems of the Member States. 

Maastricht European Private Law Institute (M-EPLI) Working Paper 30/2011

Jaar:

2011

Abstract:

These are exiting times for European Private Law.  In 2007 and 2008 the Study Group on a European Civil Code and the Research Group on Existing EC Contract Law presented the outline editions of the Draft Common Frame of Reference (DCFR), completed in 2009 with the full edition.  Although the DCFR mainly concerns contract law, other fields of private law are also included.  These include tort, unjust enrichment and property law.  Although the DCFR increasingly takes the center stage in academic debate, other comparative- and European private law projects also contribute to the further enrichment of the field.  Comparative private law scholarship is an increasingly important discipline.  Added to this are European private lawyers that focus, rather than on the comparison of legal systems, the development of European Union private law and the influence of European Union law on national law.  This European focus creates new challenges such as the combination of knowledge on European Union and private law, the understanding that European Union Law, in particular the European Court of Justice (ECJ), does not care for national classifications of private law and the difficult relationship between European Union law and national law.  European private law has, in other words, become a complex and rich discipline that is quickly gaining ground to the cost of national private law.  European Property law is a part of this development where, in recent years, much important work is done to uncover similarities and common approaches.  This type of analysis is of crucial importance for the further development of European property law because it allows comparatists to move beyond the technical differences between legal systems and focus on the principal compatibility of legal systems to investigate the possibilities for harmonization or the making of European property law.  It moreover allows a change of focus beyond the Member State level towards the European level.  Such a change in focus will help to overcome differences at the national level.  Moreover, it enables an investigation into the effects of European Union law on the law of property, also beyond the specific EU property legislation.  Examples of such are emission trading rights, wills and succession and matrimonial property rights.  Moreover, also aspects of environmental law (soil protection) and maintenance obligations have effect on property law.  Although these are very specific and often technical rules, the effect on the property law systems of the Member States is often very fundamental. 
When considering the making of European Private Law, these effects should not be neglected.  In fact, the political reality of making European private law often means that through technical regulation more effects can be achieved.  This is therefore, not direct but indirect making of European Property Law.  Both of these  direct and indirect making of European Property Law - are dealt with in this paper. 

This paper considers the future of contract law in Europe.  The main tenet of this paper is that a proper political perspective on the future of European contract law cannot consist of a generalizing approach such as the formulation and enactment of principles of European contract law. 

The EU suffers from an implementation deficit.  Member states often do not comply with EU policies, which in turn hampers the process of European integration.  This book documents the problem with the timely transposition of EU directives.  It explores the size and the causes of the transposition deficit for the case of the Netherlands.  Using a mixed methods design, it critically assesses the explanatory value of several legal and administrative factors, as well as the goodness of fit and several hypotheses flowing from rationalism and constructivism.  The main conclusion of this work is that the Netherlands suffers from a structural problem with timely transposition.  Domestic politics play an important role in explaining transposition problems.  In theorizing these politics of compliance, we should not limit our analyses to substantive conflicts but also include the procedural politics that often surround the process of Europeanization. 

The Principles of European Contract Law (PECL) are explored from a viewpoint of practical application.  It is asserted that the main use of the PECL lies in their being an optional model to be chosen by the contracting parties. 

This paper describes the ways in which EU law forces Member States to reorganise their welfare states, focusing on the effects of free movement and competition principles on health care, education, and social insurance.  It then considers the consequences of such reorganisations for national identity and social cohesion, for domestic and foreign policy and European integration, and as the creation of a new welfare industry. 

Competition policy is often viewed as an area where maximising economic efficiency is the exclusive aim.  Dealing with broader policy concerns, such as redistribution or environmental protection, is the job of the legislator, not the competition enforcer.  In this thesis, it is argued that, in the case of EC competition policy, this approach is wrong.  In reaching this conclusion, legal, governance and economic arguments are relied upon.  It is argued that environmental factors have not, in general, been given sufficient weight in the application of EC competition law to date.  This is true for the competition rules applicable to private undertakings (particularly Articles 81 and 82 of the EC Treaty) as well as those applicable to the state (particularly Article 87 of the EC Treaty)

Maastricht European Private Law Institute (M-EPLI) Working Paper 29/2011

Jaar:

2011

Abstract:

The publication of the DCFR has renewed the discussion on the need for a European Property Law.  The study published by Von Bar and Drobnig while the DCFR was prepared, underlines the inter-relatedness of contract and property.  Nonetheless, the drafters of the DCFR have chosen to deal with specific aspects of property law only.  At a European level, however, there are much more initiatives that could also have been dealt with.  Examples of these are insolvency, emission trading rights, and matrimonial property law and succession issues. 
Moreover, even when the CFR would stick to the aspects of property law it deals with now, the effect on the national systems of property law will be severe.  This does not only apply to Book IX on security interests, but also to the Book VIII on transfer rules that assumes the existence of an Anwartschaftsrecht in Article VIII.2:307 DCFR.  Also Article VIII.1:204 DCFR creates a complex relationship between property rights under the DCFR and property rights that exist at a national level.  The numerus clausus principle, as it is adhered to by many European legal systems, will have to be redefined or reshaped depending on the form the CFR will eventually take.  Also Book X on Trusts will have effects beyond the mere principles in that book.  Holding a right on trust is not generally recognized in civil law systems.  Although there are developments in this direction in Germany, France and also Italy, other legal systems, such as Dutch law, remain to resist trusts and trust-like instruments.  Also here the effects of the CFR on national property law may be severe. 
Member States will have to accommodate these European principles.  As a result they are deemed to bring their legal systems more into line with each other.  Voluntary convergence will result leading to a better functioning internal market and to rules that are likely to apply beyond the mere scope of cross-border transactions.  The DCFR therefore already contributes to the making of European Property Law. 

In this paper, the author will discuss one of the options for the future development of European contract law as sketched in the European Commission's "Communication on European Contract Law Communication".  This paper will first discuss the present state of contract law in Europe.  In section 2 of the paper, several diverging tendencies within this contract law are stressed.  Then, in section 3, it is pointed out that the now often defended 'generalising' approach toward European contract law is not in line with this approach.  Section 4 seeks to find out whether the approach of an 'Optional Code' is to be accommodated within present-day contract law and, if so, in what way. 

Maastricht European Private Law Institute (M-EPLI) Working Paper 24/2011

Jaar:

2011

Abstract:

The official comments on Book VIII of the Draft Common Frame of Reference (DCFR), having stressed that the concept of real agreement has not been adopted, seek to demonstrate that this concept is superfluous.  A real agreement is one in which the transferor declares that he is transferring ownership to the transferee and in which the transferee declares that he is accepting ownership.  Normally this is done implicitly.  Real agreement is thus the expression of the parties will that ownership should pass; it is what makes transfer a legal or juridical act.  The real agreement, it is true, will normally pass ownership only if additional requirements have been met, such as a valid legal ground, delivery or a deed, but the declaration of will between the parties is always the core element of any voluntary transfer of ownership. 
From the rejection of real agreement, therefore, it seems to follow that the DCFR does not regard transfer as a legal act at all but merely as a consequence of a certain factual act, namely delivery or an equivalent of delivery (or an agreement as to the time when ownership should pass) coupled with a valid legal ground.  It should be stressed, however, that the comments are silent on this point, neither asserting nor denying that the transfer is a legal act.  The drafters, it seems, have not realised this consequence of rejecting the real agreement. 
The article discusses the arguments put forward by the drafters of the DCFR to reject the concept of real agreement and the soundness of these arguments. 

In Transforming for Europe.  The reshaping of national bureaucracies in a system of multi-level governance, Caspar van den Berg explores the implications of the increasingly multi-level nature of governance for the French, British and Dutch national bureaucracies. 
Power and competencies in Western Europe are shared by various layers of government as well as multiple types of state and non-state actors.  What does this mean for the organisation and functioning of national bureaucracies? 
While the civil service has become less bureaucratic (in the Weberian sense) in some respects, it is more bureaucratic in others: task-separation and record-keeping for oversight have increased, while permanence of office and political neutrality in various places have decreased. 
The EU is not a single direct source to any of these developments yet its presence is certainly felt and cross-national distinction is less stark.  Nevertheless, deeply ingrained national structures and cultures have thus far prevented the converÂ¬gence of national bureaucracies into a single European administraÂ¬tive model. 
Caspar van den Berg (1980) studied International Relations at the London School of Economics and has a PhD from Leiden University.  He currently works as an assistant professor at Leiden University and as a public management consultant at Berenschot. 

In many European countries collective labour agreements play a crucial role in organising industrial relations.  A research of the European Industrial Relations Observatory (EIRO) established that in the year 2002 more than 70% of the employees within the member states of the European Union (Member States) at that time, excluding Greece, were, on average, covered by a collective labour agreement.1 These collective labour agreements are all concluded regionally or nationally and are therefore limited by the rules and the jurisdiction of the country to which they apply.  Clearly, as the integration of the Member States develops further and as globalisation is a fact nowadays, labour relations are becoming more and more international.  As is, or at least should be, (collective) labour law.2 Social partners, the key figures in collective labour law, could take advantage of the international opportunities presented to them.  They could, for instance, enter into transnational collective labour agreements that apply within the entire European Union (EU) or within a number of Member States.  This brings us to this thesis research subject: transnational collective labour agreements having force in the EU.  Two preliminary questions will be answered before moving on towards the main matter of this research. 

This article discusses the events before and after the Dutch 'no' to the Treaty Establishing a Constitution for Europe.  It analyses the manifold causes and considers the consequences.  The paper argues that the Dutch no is  in a sense  a protest against the process of integration by stealth, i.e. the forging of constitutional law of a Union without directly consulting nor in-volving the population.  At the end of the contribution the question is raised whether Dutch politicians or the Dutch government have taken the lessons of the referendum to heart.  The recent debate leading up to the ratification of the Treaty of Lisbon raises some doubts in this respect.