European Community Law Research Articles

European Private Law and Existing EC Law

EC law has expanded so much in recent decades that it is possible to develop overarching principles for contract law and other areas of law from the provisions for individual subjects and sectors. Unlike thirty years ago, when the ?Lando-Commission? began its work, today the existing Community law itself can form the primary source of academic works for the further development of European private law. On this basis the ?acquis research? contributes to remove substantive and terminological inconsistencies in the acquis communautaire, as well as creating a frame of reference for the development of European contract law through legislative measures. The ?acquis-approach? and comparative studies however have to supplement each other. Although the principles of the existing European Community law cover more objects of contract law than commonly supposed, they by no means cover all areas.

La interdependencia entre el derecho internacional y el derecho comunitario europeo

El derecho comunitario europeo es un particularismo jurídico que coexiste con el derecho internacional general, y cuyo resultado es la existencia de la Comunidad Europea como organización internacional de integración. La coexistencia del derecho comunitario europeo y del derecho internacional conlleva la existencia de una interrelación entre ambos ordenamientos jurídicos, incidiendo este último sobre aquél y aportando el primero numerosas innovaciones sobre las tradicionales instituciones iusinternacionalistas. Por consiguiente, el derecho comunitario europeo se configura como un subordenamiento jurídico del derecho internacional, si bien autónomo y propio de la Unión Europea.

'Scrupulous but Dynamic'--the Freedom of Expression and the Principle of Proportionality under European Community Law

'Scrupulous but Dynamic'--the Freedom of Expression and the Principle of Proportionality under European Community Law

Human Rights, Asylum and European Community Law

Human Rights, Asylum and European Community Law

'Sustainable Development' as Legal Term in European Community Law: Making It Operable Within the Habitats Directive and the Water Framework Directive

Sustainable development (SD) in not only a political aim of the EU, but has been also introduced in the European Treaties in 1997 as both legally binding task and goal. This paper develops a comprehensive interpretative and dogmatic understanding of these provisions and their possible consequences for the application of European environmental law. SD within EU-law is usually understood as being one aim amongst others based on the wording of the provisions and the general idea of three dimensions of SD (ecological, social and economic) having equal weight regardless of the specific conditions within the EU and its member states. This concept is rejected with reference to the idea of a common but differentiated responsibility as an essential part of SD. In any case, the European environmental law has to be interpreted in the light of the tasks and aim of the European Treaties, especially those provisions that leave room for a discretionary weighing of different interest or aims, particularly of environmental, economic and social interests. The latter is required when overriding public interests allow a deviation of generally accepted environmental standards like in Art 6 of the Habitats Directive and Art 4 Water Framework Directive (WFD), where SD is explicitly introduced in the form of sustainable human development activity. The idea of a common but differentiated responsibility requires that this consideration has to be carried out in different member states differently according to their economic development. Therefore these environmental exception clauses may only be applied in those areas of the Community having a development lag that is identified by the standards used within the structural funds, i.e., a per capita GDP below 75% of the community average.

Good Administration and Administrative Procedures

Good Administration and Administrative Procedures Dr. Juli Ponce (bio) This article examines the relationship between administrative procedures, the duty of giving reasons, and the citizens' participation in relation to the quality of the administrative behavior. I will take into account some national experiences and will reflect about some crucial issues connected with fundamental rights and administrative procedures in the European Union (EU). The U.S. model will also be considered.1 This study focuses on adjudicative procedures. I will not analyze rulemaking procedures, but a number of brief considerations about them will be included in the final part. The three fundamental questions are: 1. What purpose do administrative procedures serve? That is, why do must public authorities follow an administrative procedure when making a public decision? 2. Is it a good or bad idea to regulate administrative procedure? If good, how best to regulate it? 3. Who should regulate administrative procedures? The article will begin by analyzing the functions of administrative procedures as legal institutions. I will distinguish the instrumental functions from the noninstrumental, paying special attention to the relationship between good administration and its procedural aspects. Secondly, I will consider whether it is a good idea to codify administrative procedures, and discuss arguments in favor of [End Page 551] and against codification. Accepting that codification could be a good idea, I will then examine the different possible ways of codifying procedures, analyzing the first European attempt to regulate the administrative procedures that have taken shape in the European Code of Good Administrative Behaviour.2 Later, I will examine the subjects given responsibility for codifying administrative procedures. Thus, I will consider the role of the Constitution, the Parliament, and the executive branch, as well as case law intervention. I will conclude with some brief reflections about rulemaking. I will adopt an international and comparative approach, analyzing European national administrative laws, EU law, and U.S. law. The goal is to show that although there are differences between those legal systems, there is a certain degree of convergence in relation to problems and solutions. This is not surprising, given our increasingly globalized world. I. What are the Functions and Rationales of Administrative Procedure? Differences may be distinguished between noninstrumental and instrumental functions: a. Noninstrumental functions: administrative procedure plays a role by itself without being linked to the final decision that is its output. Among these functions can be highlighted at least the following: 1. protection of personal dignity (a dignified approach linked to Kant's ideas);3 2. promotion of citizens' participation (sometimes associated with deliberative democracy following Habermas' ideas, for example);4 3. enhancing transparency and accountability;5 and [End Page 552] 4. improvement of legitimacy. Administrative procedures compensate for the lack of formal rationality owing to the lack of legal predetermination in the case of existing discretionary areas of judgment, offering an extra legitimacy based on more democracy and better quality of the outputs.6 b. Instrumental functions: from this perspective, administrative procedure guarantees the correctness of the substantive outcome. Administrative procedure is useful for: 1. the protection of rights and interests (the procedure then acting as a legal "shield") and 2. the promotion of good administration and, consequently, the quality of final decisions, especially if discretionary powers exist.7 In order to develop this second role of administrative procedures in relation to outcome-that is, the promotion of good administration-it is first necessary to understand the meaning of discretionary powers. The European concept of discretionary powers entails two common notions: choice and general interest. Academic writers agree that discretion means that public administration is empowered by law to choose from among several legal possibilities, taking into account nonjuridical criteria. This choice implies balancing public and private interests by using extralegal values to define a general interest that is not established by statutes. A particular recommendation by the Committee of Ministers is of interest in the field of European Community (EC) law; in its appendix, this recommendation defines "discretionary power" as a "power which leaves an administrative authority some degree of latitude as regards the decision to be taken, enabling it to choose from among several legally admissible decisions the one which it finds to be the most...

Accentuating the Positive: The ‘Selling Arrangement’, The First Decade, and Beyond

The ‘selling arrangement’ is a judicial device which removes national law from thescrutiny of European Community law relating to the free movement of goods. National provisions affecting the marketing of products may fall for consideration as ‘selling arrangements’ where the treatment of the domestic and imported goods has been even handed. Measures relating to the substance of the goods remain subject to Community law rules on the free movement of goods. The prime example of the selling arrangement is the advertisement, but in the years since creation, other areas of national activity with respect to the free movement of goods have been enveloped inthe selling arrangement. Certain measures which have related to the conduct of business may also fall for similar treatment as selling arrangements. A recent development would appear tomean that the concept of the selling arrangement may apply where the obligation imposed by the national measure has beenidentified as being general, as opposed to specific in nature. Were this to be so, the selling arrangement would have the potential to break free of the traditional boundaries established for itunder Criminal Proceedings against Bernard Keck and Daniel Mithouard.1

Des principes de la conclusion du contrat dans l’acquis communautaire

The article shows, focussing on formation of contract that the existing European Community law contains principles which can form the basis for a more coherent future European contract law in accordance with the action plan of the European Commission. These include not only fundamental principles of contract law such as freedom of contract, ensuring contractual parity in favour of the structurally weaker party and nondiscrimination on grounds of race, ethnic origin and gender. Moreover, one can also extract from the Acquis communautaire a series of further principles with regard to various aspects of formation of contract, such as the agreement of the parties as the basis of contractual obligation, the binding effect of pre-contractual information duties and the exercise of withdrawal rights. These principles more closely correspond to the modern developments and needs in the internal market than the principles which result from a comparison of the legal traditions of the member states. They should therefore assume a central role in the elaboration of the Common Frame of Reference for European contract law.

Integration of Immigrants: The Perspective of European Community Law

Integration of Immigrants: The Perspective of European Community Law

The Functional Representation of the Individual's Interests Before the EC Courts: The Evolution of the Remedies System and the Pluralistic Deficit in the EC

The Functional Representation of the Individual's Interests Before the EC Courts:The Evolution of the Remedies System and the Pluralistic Deficit in the EC Luigi Malferrari (bio) Abstract Introduction Given the democratic deficit affecting Community governance, the representation of the individual's interests through tools that are different from the traditional political ones is particularly necessary and important in the European Community (EC).1 Although such alternative tools cannot substitute for the political channels of interest representation, they can integrate them and they are essential to enhance the effectiveness of the representation of the individual's rights and the respect of the rule of law. Given the difficulties citizens and enterprises experience in making their voices heard by the EC political institutions (Council, Commission, and Parliament) and national governments, sometimes the only feasible channel for effectively pursuing their interests is the judicial one. At the same time, the increasing "juridification" of society has turned judicial processes into sites of policymaking within the Community as well. As a result, the functional representation of individual interests before the courts plays a crucial role in the EC. To be effective, the functional representation of the individual's interests before courts presupposes three elements. First, individuals must have sufficient access to courts. Second, the individual's interests must be taken into account in [End Page 667] judgments. Third, those judgments must be enforced. This article will focus on the first element, whereas it will only touch on the second and third elements. Acknowledgment I would like to thank Miriam Aziz, Julio Baquero Cruz, Marco Dani, Nicoletta Falcone, Kirsten Roberts, Louise Robinson, Peter Teachout, and Lorna Young for precious input on the substance and language of this paper. However, the content of this paper reflects only my personal views, and any error of law or fact is solely my responsibility. A previous version of this paper was delivered at the symposium Back to Government? The Pluralistic Deficit in Decisionmaking Processes and Before the Courts held on June 11 and 12, 2004 at the University of Trento, Italy. The aim of this article is thus twofold. First, it illustrates the development of the different avenues that allow the functional representation of the individual's interests before the EC courts. Such avenues are described and critically assessed in regard not only to their aptness to ensure effective interest representation, but also to their impact on European, as well as national, governance. Second, building on this assessment, the paper will discuss possible reforms of the EC judicial remedies with a view to improving or at least maintaining their effectiveness as tools for the functional representation of the individual's interests. I. The Tools for the Individual's Interest Representation Before the EC Courts Before tackling the question of the reform of the EC remedies system, it is necessary to analyze and assess its development from the perspective of the individual's interest representation. The functional representation of the individual's interests before the EC courts is achieved basically through two avenues: 1) access to the EC judiciary in its function as supreme and/or constitutional court and 2) access to the EC judiciary in its function as administrative court. A. Interest Representation through Supreme or Constitutional Adjudication The main and foremost tool for the judicial interest representation at the EC level is doubtlessly the adjudication by the European Court of Justice (ECJ), acting in its role as supreme and constitutional court. This type of adjudication can be achieved in two ways. The first and more relevant one is the preliminary ruling procedure under Article 234 of the EC Treaty (ECT).2 The second is the infringement action that can be brought by the Commission against a Member State under Article 226 of the ECT. 1. Preliminary Ruling Procedure The basic traits of the preliminary ruling procedure under Article 234 of the ECT are generally well-known. They will be very briefly recalled here for the [End Page 668] sake of clarity. Where a dispute before a national judge poses a question regarding the interpretation of EC law, he (usually spurred by the parties) may or, if it is a court of last instance, must refer this question...

Policies in place throughout the world: action by the European Union

Policies in place throughout the world: action by the European Union

Commission of the European Communities v. Jégo-Quéré & Cie SA. Case C-263/02 P

The approach that the Court of Justice of the European Communities (ECJ) has taken to the standing of private parties seeking to bring actions for annulment of European Community (EC) measures in the Community courts (the ECJ and the Court of First Instance (CFI)) has been one of the most widely debated and criticized areas of EC law. In Jego-Quere v. Commission of the European Communities (Commission), the CFI was required to rule on the admissibility of an action brought by an individual applicant against a Commission regulation. In a bold move the CFI fundamentally changed the requirements for the admissibility of actions brought by natural or legal persons against EC legislation in the Community courts. The new rules did not, however, survive the appeal to the ECJ. In Commission of the European Communities v. Jego-Quere & Cie SA, the Court reaffirmed its long-established test for the standing of private applicants. This article discusses both decisions and comments critically on the ECJ's unnecessarily restrictive approach to locus standi for private parties.

‘Is This a Conflict Rule Which I See before Me?’ Looking for a Hidden Conflict Rule in the Principle of Origin as Implemented in Primary European Community Law and in the ‘Directive on Electronic Commerce’

The article will endeavour to examine the claims in some doctrinal writing that the ‘principle of origin’ in fact contains a hidden conflict rule which directly renders applicable the country of origin's law. When examining this question, a distinction has to be drawn between the principle as it can be found in primary European Community law (the Treaty freedoms) on the one hand, and the principle as it was implemented in several instruments of secondary Community law. These correspond to the two main parts of the article. The second part will however only deal with one example of a secondary instrument implementing the principle of origin, namely the ‘Directive on electronic commerce’.

Regulatory and Competition Law Remedies in the Postal Sector

European Community law has played a pivotal role in opening to competition economic sectors previously under the control of public monopolies. As with other sectors such as telecommunications, air transport, electricity, gas, and rail, the postal sector has succumbed to the wave of liberalisation. Liberalisation in the postal sector has forced stagnant state-owned monopolies to modernise themselves in order to compete with new entrants which are nibbling at the fringes with innovative business strategies. As is the case in network industries, the postal sector is subject to market failures. It finds itself in a position whereby the postal incumbents for letter mail usually remain protected by exclusive rights while the same entities are increasingly competing on the international mail, parcel and logistics markets. This situation has the potential to have a detrimental effect on consumer welfare. In order to prevent the postal incumbents using their market power, remedial action is necessary to allay such fears. Another market failure requiring intervention relates to universal service. There are indeed areas in which postal services will not be provided by the market because they are not profitable. Hence, universal services need to be defined and mechanisms have to be developed to fund these obligations without, however, distorting competition. In this paper, we will focus on the first category of market failures, i.e. the bottlenecks that may prevent competition in the postal sector. There are two regulatory instruments to impose remedies in network industries, sector-specific regulation and competition law. In this paper, we explore how these two approaches have been used to facilitate the arrival of competition in the postal sector. Until recently, the Community institutions have been reluctant to use regulatory intervention and competition law to challenge the public monopoly models. Regulatory requirements have, however, been imposed through Directive 97/67 and, over the last few years, competition rules have been applied much more rigorously in the postal sector, with the result that there is an increasing corpus of case law.

Epistemological Value of Roman Legal Rules in European and Comparative Law

Abstract: Very often the European Courts make use of legal maxims or adages coming out of the ancient Roman-Canon ius commune in their decisions (or conclusions of the Advocates General), even in their original Latin form, as a way of solution of cases where no clear rule in the Community legal order is found. In this paper different possible interpretations thereof are discussed, just as a simple rhetorical devise, an expression of European Community law principles, or a consequence of the ‘subconscious’ remaining of ancient ius commune in the core of the new European (private) law, at any case as a means of harmonizing European law other than of codification or legislative acts.

The Liner Shipping Block Exemptions in European Law: Has the Tide Turned?

This article discusses the competition regime as it applies to shipping or liner conferences and consortia under European Community law. The Commission is currently considering changing this regime. There are five sections to this article. Section I is a factual introduction to shipping conferences and consortia, what they are, and how they operate. Section II deals with the competition law regime as it applies to certain shipping cartels, briefly highlighting the background, as well as the substance, of the relevant legislation and jurisprudence. Section III discusses the economic effects of these rules, as well as considering their effect on developing countries; it also examines whether or not these rules achieve their underlying objectives. Section IV takes the conclusions of Section III and asks whether, and where appropriate how, these should impact upon the substantive content of the rules, as discussed in Section II. Section V concludes.

THE WALL*, OBLIGATIONS ERGA OMNES AND HUMAN RIGHTS: THE CASE FOR WITHDRAWING THE EUROPEAN COMMUNITY'S TERMS OF PREFERENTIAL TRADE WITH ISRAEL**

In this paper, the author argues that the European Community's Association Agreement with Israel is not compatible with public international law and European Community law. This is especially so as regards Article 2 of that agreement which stipulates that the EC-Israel relationship is conditional upon respect for human rights, democracy and the rule of law. He argues that in the light of the ICJ's 9 July 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, particularly regarding its findings as to Israel's breaches of obligations erga omnes; there is a case to be made that those parts of the agreement that grant Israel preferential trade should be withdrawn. This is because Israel has been found to be in breach of its humanitarian and human-rights obligations under customary international law, which according to the jurisprudence of the European Court of Justice, is binding upon the European Community. That Israel is in material breach of the association agreement is therefore beyond doubt. Israel should not, therefore, benefit from its unlawful act through having preferential access to the common market. Under European Community law, access to the common market is conditional. It is a privilege and not a right. Israel should therefore not benefit from its illegal act. As long as Israel remains in breach of customary norms of international law, as set out in the Advisory Opinion, the international responsibility of the European Community will remain.

The Relationship between European Community Law and National Law: The Cases Volume 2, by Andrew Oppenheimer (ed.), Cambridge University Press, 2003, 732pp

The Relationship between European Community Law and National Law: The Cases Volume 2, by Andrew Oppenheimer (ed.), Cambridge University Press, 2003, 732pp

Toward Global Democracy: Thoughts in Response to the Rising Tide of Nation-to-Nation Interdependencies

1. Jurgen Habermas, L’Etat-Nation Europeen: Passe et Avenir de la Souverainete et de la Citoyennete, in L’Integration Republicaine: Essais de Theorie Politique 95, 115 (Rainer Rochlitz trans., 2000). *Visiting Scholar, Harvard Law School, (2003–2004). I would like to thank Jose Correa (President of Doublevision) who provided me with many outstanding comments about this article. I would also like to thank my mentors Craig Scott (Dean and Associate Professor, Osgoode Hall Law School, Toronto, Ontario) who has assisted with revisions and provided challenging comments while remaining very enthusiastic about my ideas, and who is persistently encouraging me to pursue my ideas and Professor Richard Janda for his constant support of all my projects, always providing suggestions and great advice about my ideas. I wish to further thank Professors Janet Halley, Jerry Kang, David Kennedy (Director of the European Community Law Center), Henry Steiner (Director of the Human Rights Center), Franck Vogel (Director of the Islamic Law Center), all of Harvard Law School, as well as anonymous reviewers, for their continuous encouragement and confidence. I would also like to thank Professor Stephen Toope, who is the Director of the Trudeau Foundation and formerly Dean of McGill University, and Professor David Lametti, Director of the Comparative Law Institute of McGill University, who have believed in me, constantly pointing out that my research is not only relevant, but important at this point in international history. An earlier version of this article was presented at a graduate seminar at Osgoode Hall Law School. I wish to thank participants at those sessions for their valuable comments, in particular Adam Vasey. I would also like to thank Obiora Okafor and Professor Liora Salter of Osgoode Hall Law School, for their comments and encouragement on an earlier version of this text, and their ongoing interest in my work in international democracy. I would like to thank Juan Castro, Visiting Scholar, Harvard Law School (2003), who, at the end of my research, and in spite of his admiration of the theory elaborated herein, enthusiastically provided a substantive critique of my ideas, which has reoriented my thoughts. Research support was generously provided by Osgoode’s Hallett Scholarship and Harvard Law School (in the latter part of my research). Finally, I would like to thank Harvard Law School for allowing me to present related ideas in the Colloquium Seminar in December 2003.

All talk, little action: precaution and European chemicals regulation

The European Union has chosen the precautionary principle as a key guiding principle to achieve more effective policy-making on risks, by moving away from preventive regulation towards more precautionary regulation. Precautionary language has been a part of European Community law for over a decade; however, whether its establishment has had any real effect on European policy-making and regulations is more unclear. This article examines whether the introduction of precautionary language in Community texts has had an effect on the process by which potential risks associated with hazardous chemicals are managed. The article focuses on the two cases of polychlorinated biphenyls (PCBs) and brominated flame retardants(BFRs), and covers the time before, during, and after the Community introduction of the precautionary principle. The article finds that there has been a marked change in the way environmental risks are conceptualized and discussed, but a clear effect in regulatory practice has yet to be seen. Current proposals to revise Community chemicals management, however, contain elements that could enhance precautionary regulation.