European Community Law Research Articles

Vers une convergence des droits allemands et français des sociétés ?

A convergence between the French and the German Corporate Law, still very different in various details, realizes itself on the one hand indirectly by the implementation of European Community Law and on the other hand by the spontaneous interchange of ideas. When the harmonization through EC legislation seems at first glance a reality, it allows, however, in its details a wide scope for discretion in favour of the different national Laws. The outcome concerning the spontaneous convergence by a direct exchange of basic ideas and judicial concepts between the two countries is as well ambiguous. Whereas a decrease of comparative studies and an orientation concentrating more and more on Anglo-Saxon systems is to observe, a convergence turns out regarding general tendencies and principles, which both encourage legislators while answering to certain common problems.

Polish and German Constitutional Jurisprudence on Matters of European Community Law: A Comparison of the Constitutional Courts’ Approaches

Germany and Poland are the two largest EU members in Central Europe. Although they are neighbouring countries, their historical situation and perspectives, and thus their expectations and motivations regarding EU membership, differ greatly. The two states’ legal systems, on the other hand, are largely similar. This article aims to compare how the two countries’ constitutional preconditions determine how their constitutional courts approach the integration of Community law. It also aims to point out similarities and differences between the courts’ approaches. Furthermore, it seeks to illuminate the difficult relationship between constitutional courts and the European Court of Justice and indicate possible ways of mitigating these theoretical and practical difficulties in the future.

Reconsideration of the Action for Failure to Act under the European Community Law

Reconsideration of the Action for Failure to Act under the European Community Law

A New Era in Human Rights Protection in the European Community: The Implications the United Nations' Convention on the Rights of Persons with Disabilities for the European Community

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is ground breaking in many respects: it is the first human rights Convention of the new century; it is not merely a non-discrimination convention, but also provides for a wide range of classical and substantive rights; and, from a European perspective, it is the first human rights convention which the European Community (EC) negotiated and signed, and it will be the first such convention which the Community will ratify. Consequently, the CRPD will take on a completely new legal status within EC law, and will have to be respected in its totality, and not as a mere add on to be referred to in passing in Community instruments. The Community competence to negotiate, sign and ultimately ratify the Convention, alongside the Member States, resulted primarily from changes introduced by the Amsterdam Treaty. Under Article 13 EC the Community acquired powers to take action to combat disability discrimination. In addition EC competences exist in a number of other areas where a disability dimension exists, although no other specific mention of disability can be found in the main body of the EU or EC Treaties. As a consequence of this direct involvement with the Convention, the EC will, like other State Parties, be bound by its obligations. The goal of this paper is to give some first impressions as to what this implies for the EC and, specifically, what legal obligations ratification of the Convention will impose on the Community.

The Principle of 'interpretation conforme': How Far Can or Should National Courts Go when Interpreting National Legislation Consistently with European Community Law?

The Principle of ‘interprétation conforme’: How Far Can or Should National Courts Go when Interpreting National Legislation Consistently with European Community Law? Katrine Sawyer Katrine Sawyer *Legal Secretary to Judge Borg Barthet, European Court of Justice; Barrister, Hailsham Chambers, London Search for other works by this author on: Oxford Academic Google Scholar Statute Law Review, Volume 28, Issue 3, November 2007, Pages 165–181, https://doi.org/10.1093/slr/hmm006 Published: 01 November 2007

Over-Regulation and Suing the State for Negligent Legislation

It is becoming a common concern amongst the judiciary, practising lawyers, academics, and those who draft legislation, that an acceptable standard of drafting is not always being achieved in primary legislation and, still less so, in secondary legislation. This paper discusses whether legislative bodies are, or should become, legally responsible for substandard legislation, especially where this negligence affects individuals disproportionately. It also considers some of the legal and practical problems that may arise in the case of negligently-drafted primary legislation and contrasts this with the less defensible position of subordinate legislation. The problem of immunity from legal action in respect of negligent legislative acts is discussed and it is postulated that European Community law may provide a model for developing a new tort of legislative negligence. 1 This paper is based on an earlier version presented to the Commonwealth Legal Education Association conference, held in Greenwich, London, in September 2005. Thanks to participants at the conference and to colleagues in the Department of Law, University of Surrey, and especially to Amanda Cleary, for their helpful comments, criticisms and suggestions. Thanks also to the University of Surrey for funding Tim Sinnamon to enable him to participate in the research for and writing of this paper. All omissions, errors of fact and emphasis remain the responsibility of the authors of this paper. 2 Leslie Blake, Lecturer in Law, Department of Law, University of Surrey, Guildford, Surrey, GU2 7XH, l.w.blake@surrey.ac.uk 3 John Pointing, Barrister and Senior Lecturer in Law, School of Surveying, Kingston University, Kingston upon Thames, Surrey, KT1 2QJ, j.pointing@kingston.ac.uk 4 Tim Sinnamon, Associate Lecturer in Law, Department of Law, University of Surrey, Guildford, Surrey , GU2 7XH, t.sinnamon@surrey.ac.uk

Sanctions for Infringements of Gambling Laws in Italy

This article gives a comprehensive overview of the relevant penal and administrative sanctions for infringements of gambling laws in effect in Italy on the eve of the Placanica decision. It also provides an analysis of the principal sources of legislation – viz., the Penal Code, Act no. 401/1989, Royal Decree no. 773/1931 (‘TULPS’), Act No. 296/2006 and the related AAMS Decree dated 2 January 2007. The article also considers the question of whether Italy’s new policy of inhibiting foreign internet gambling operators violates European Community law.

The changing attitude towards liability for damage to the environment under european community law

The question of responsibility for and determining who takes action on behalf of the environment forms the foundation of environmental law. As the EC develops new legislation for environmental liability, John Faulks discusses the background to EC environmental law and outlines the far reaching implications of changing the emphasis of legal responsibility for environmental damage.

Law, globalisation and the NHS

The regulation of medical work in the UK has been shaped by the post-war settlement, which lead to the creation of the National Health Service in 1948. The removal of clinical care from the market was supported over the following decades by prohibitions of the sale of human organs and gametes. That settlement is now being dismantled, with the increasing privatisation of NHS facilities. The recommodification of medicine in Britain is achieved as part of broader patterns of neoliberal globalisation. Cross-border markets in health services are realized in law through international (e.g. the General Agreement on Trade in Services) and regional trade law (e.g. European Community law).

On 'Middle Ground': The European Community and Public International Law

Does the Community legal order constitute a closed 'self-contained regime' or will it be an 'open system'? While founded on the basis of an international treaty, the European Community still had to determine - not unlike national legal orders - the effects of public international law in its 'domestic' sphere. Has the Community legal order thus assumed an 'autonomous' position vis-a-vis general international law? And if so, what is the status and effect of international norms in the Community legal order? This chapter discusses these issues by analysing the constitutional regime developed for international treaties concluded by the Community and customary international law. The second part changes perspective and investigates when the Community has considered itself materially bound by international agreements concluded by its Member States via the doctrine of functional succession. In general, the Community's constitutional choice vis-a-vis public international law has a federal dimension: placed on systemic middle ground', the EC legal order may potentially operate as a conduit for the incorporation of international law in the national legal orders of its Member States.

Unilateral Measures and WTO Dispute Settlement: An EC Perspective

This article explores the issue of unilateral measures in the field of international trade. The analysis focuses on the European Community (EC) Regulation adopted to counteract the delayed US compliance with the Dispute Settlement Body (DSB) recommendations in United States - 1916 Anti-Dumping Act. The Regulation is set within its context and its legality is examined under EC and World Trade Organization (WTO) law. The Regulation violates EC law with regard to the legal basis chosen, the content and context for its adoption. More controversially, it is submitted that the Regulation violates WTO rules and in particular those enshrined in the Dispute Settlement Understanding (DSU). Premised on these findings, the article concludes that both EC and WTO law limit the EC's discretion at the adoption of unilateral measures in the field of international trade and furnishes support to the general statement that, in its proper construction, the DSU precludes WTO Members from taking unilateral measures in their international trade relations.

EU Customs Law and International Law

The interdependence between international law and European Community law, particularly in the area of customs, is very complex. The ways in which international customs law is incorporated into the Community’s legal system are many and varied, and there is a need to establish some standard mechanisms for the future in order to reduce the diversity of solutions that are found for problems that are similar. The introduction of the modernised Customs Code provides an opportunity to explore the application of a general model according to which international customs law may be made part of the Community’s legal system.

Le Statut Communautaire de la Polynésie Française

From the point of view of France, French Polynesia is an integral part of the French Republic but it does have a certain degree of political autonomy. From the point of view of European Community law, French Polynesia has a special status under the Part 4 of the EC Treaty. That Part confers on French Polynesia the benefit of a special relationship with the European Union. In addition French law considers that those living overseas are all French citizens and therefore have under the EC Treaty the status of European citizen. In this paper the author considers the nature of the association of the French territories to the European Union that is provided in the Treaty and notes that it is not radically different from that provided in the Cotonou Agreement. Working from that point the article investigates whether the provisions of Part 4 alone apply to the overseas territories and seeks to identify the true range of the application of community law to the overseas territories.

Improving efficiency in airport finance: A review of airport charging and slot effectiveness

This paper deals with the regulatory regime governing airport charges, and introduces the European Commission's current plan of 2005 for setting up a Community-wide framework in this area. It shows how airport charges can be used to improve airport efficiency and thus raise additional finance. More specifically, it recommends an ‘infrastructure fee’ as a tool to reduce no-show rates. Airport charge schemes for the attraction of low-cost carriers (LCCs) are also outlined, as well as the legal limits set by European Community law. Finally, ways to increase slot effectiveness are presented, and the paper describes the potential impact of slot trading as an element of future Community airport regulation.

When functionality is not fatal

The Court of Appeal has confirmed that, under both UK and European Community law, functional designs can be protected by unregistered design right provided that there exist other means of achieving the same purpose.

‘What Has It Got to Do Necessarily with the European Union?’: International Family Law and European (Economic) Integration

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

‘What Has It Got to Do Necessarily with the European Union?’: International Family Law and European (Economic) Integration

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

EC Law and International Agreements of the Member States—An Ambivalent Relationship?

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.

EC Law and International Agreements of the Member States—An Ambivalent Relationship?

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.

Labour Rights as Human Rights: Implications for Employers’ Free Movement in an Enlarged European Union

This chapter considers the legal status of labour rights as human rights within the European Union (EU) and the implications that this may have for free movement provisions under European Community (EC) law. This is not by any means a new subject for analysis and reflection, but has been of particular concern since the fifth enlargement of the EU which commenced in 2004. It is in this context that we have witnessed significant litigation before the European Court of Justice concerning the scope of the right to strike, and widespread protest concerning the adoption of a new Directive on Services in the Internal Market.