Laws Of Member States Research Articles

The European Union and Human Rights after the Treaty of Lisbon

This article considers the state of human rights protection in the European Union (EU) after the Treaty of Lisbon. The Lisbon Treaty introduced significant changes to human rights protection in the EU, the most significant of which lie in the amendments to Article 6 of the Treaty on European Union. These provide that the EU Charter of Fundamental Rights is now legally binding, having the same status as primary EU law, and that the EU 'shall accede' to the European Convention on Human Rights (ECHR). In the two years since the Lisbon Treaty came into force, the Charter has been referred to on many occasions by the European Court of Justice, and now operates as the primary source of human rights in the EU. This article examines the import of this case law, some of it ground-breaking and controversial, as well how the higher profile for human rights under the Charter is likely to change the nature of the EU's relationship with the ECHR. The article also examines the complex procedure for the EU's accession to the ECHR, which is now underway, highlighting particularly significant aspects of this. The article concludes with some general reflections about the status of human rights protection in the EU, suggesting that this has become one of the most significant areas of EU law which has had, and continues to have, a crucial impact on the EU's relationships with its Member States, the EU and international law. © The Author [2011]. Published by Oxford University Press. All rights reserved.

How to Opt into the Common European Sales Law? Brief Comments on the Commission’s Proposal for a Regulation

Unlike the actual text for the proposed Common European Sales Law (CESL), which is based on extensive preparatory work by academics, the regime for opting into the instrument, which is set out in the main text of the proposed regulation, is entirely of the European Commission's own making. The approach adopted by the Commission is innovative and generally convincing, although there is still room for improvement. Characterizing the optional instrument as a second national regime rather than as a 28th regime has the important advantage of neutralizing the effect of Article 6 Rome I in B2C contracts, which makes the instrument sufficiently self-standing to become an attractive alternative. At the same time, this choice is acceptable politically and constitutionally (Article 114(3) TFEU) as long as the level of consumer protection within the common sales law remains as high as it is in the current proposal. In business-to-business (B2B) contracts, it is misguided for the regulation to suggest, as it does in the proposal, that a choice for the CESL would imply ipso facto the opting out of the CISG, since the question of what amounts to an exclusion of the CISG is a matter of interpretation of the parties' intentions under the CISG alone. Having said that, in most cases, it will not be very difficult for a court to deduce an implicit opting out of the CISG from an explicit opting into the CESL. Nevertheless, especially in the case of a partial choice for the CESL, which the proposal allows for B2B, interpretative difficulties may arise. The duty for sellers in B2C contracts to draw the consumer's attention to the intended application of the CESL by providing the consumer with a Standard Information Notice (SIN) is not likely to bring consumers much extra protection while the proposed sanction will bring undue legal uncertainty and should, therefore, be reconsidered. It also sends the wrong message, as if this new European law were something dangerous that consumers have to be warned about. The terminological choices of the proposal are not always felicitous. For example, it is not clear what is meant by the expression that the parties 'may use' the law. Of course, the proposed CESL does not fit neatly with any of the received dichotomies of international versus national contracts, Member State versus Union law, direct versus indirect applicability, and substantive versus conflict-of-laws choice of law. In some respects, therefore, the CESL may have to be regarded as sui generis. This is not at all surprising in light of the fact that the European Union (EU) itself is a sui generis legal order. However, the European legislator should try to make it as clear and foreseeable as possible for contracting parties what exactly will be the consequences if they opt into the CESL.

The Influence of the European Legislator on the National Criminal Law of Member States: It Is All in the Combination Chosen

The Utrecht Law Review is an open-access peer-reviewed journal which aims to offer an international academic platform for cross-border legal research. In the first place, this concerns research in which the boundaries of the classic branches of the law (private law, criminal law, constitutional and administrative law, European and public international law) are crossed and connections are made between these areas of the law, amongst others from a comparative law perspective. In addition, the journal welcomes research in which classic law is brought face to face with not strictly legal disciplines such as philosophy, economics, political sciences and public administration science.The journal was established in 2005 and is affiliated to the Utrecht University School of Law. If you wish to receive e-mail alerts please join the mailing list.

I. INTELLECTUAL PROPERTY

Community activity in this field continues to be extensive. Intellectual property is seen as a key resource for the European Union (‘EU’), and crucial to its position in the global economy. The EU's manufacturing sector is much decreased in importance in comparison with the services sector. New information and communications technologies have transformed the economic environment. The Commission repeatedly emphasises the importance of intellectual property rights for innovation, employment, competition, and economic growth. Intellectual assets are regarded as central to success in the new ‘knowledge economy’. There are two main strands to the Commission's work with intellectual property. One is the harmonisation of the laws of Member States, in order to eliminate barriers to trade. The other is the creation of unitary systems to protect intellectual property rights throughout the Community on the basis of a single application for protection. The Commission also demonstrates particular concern regarding counterfeiting.

Transboundary groundwater law in Europe: a look at an evolving multi-level regime

Transboundary groundwater resources in Europe are increasingly governed by a multi-level regime composed of national, supranational and international law. The article provides an overview of essential features of the 2000 Water Framework Directive and the 2006 Groundwater Directive of the European Union. It identifies their pivotal role not only regarding the domestic groundwater law of European Union member states, but also with respect to international law pertaining to transboundary groundwater resources in Europe.

Executing Judgments of the SADC Tribunal Rendered Under its Human Rights-Related Jurisdiction by Utilising the Foreign Judgments (Registration and Enforcement) Procedure: Prospects and Challenges

This article interrogates the unprecedented step taken by the SADC to utilise the procedure used for the registration of foreign judgments in order to make judgments of the SADC Tribunal enforceable at national level. The author of this article argues that the SADC Tribunal enforcement mechanism stands out as a first in international litigation where an inter-governmental organisation has adopted a specific avenue through which judgments should be enforced at national level. This is so given that the default rule is that judgments of an international tribunal are not executable at national level unless the domestic law of a given state so provides. This article goes further to assess whether the law of the SADC member states as it stands at the time of writing is ready to recognise and therefore, receive judgments of the SADC Tribunal for enforcement. The work is also an attempt to utilise private international law principles to address challenges in the domain of public international law-human rights. The author concludes that there are mixed results regarding this possibility. The SADC Tribunal and its judgments satisfy some but not all of the requirements that have to be met in order for a foreign judgment to be registered for enforcement. So fundamental are the deficiencies such that the author recommends, among other things, the adoption of a harmonised law at SADC level in order to bring the domestic legal states of the SADC member states to the expectations of SADC Community law on enforcement of judgments. These conclusions are arrived at fully recognising the fact that the use of the foreign judgments procedure is simply one of the many ways through which judgments of the SADC Tribunal could be enforced at national level.

Introduction of Directive 2002/44/EC

Objective: The aim of this paper is to introduce the Directive 2002/44/EC on the minimum health and safety requirements regarding the exposure of workers to the risks arising from vibration. Background: Human beings interact with machinery, and contact with vibration is commonplace. Unfortunately, continuous exposure to mechanical vibration can lead to physical injury. And standards are needed for identifying those at risk and for taking steps to mitigate the problem and reduce risk of injury. Method: The contents of the Directive were summarized and discussed, especially against its ISO counterparts. Results: The Directive deals with minimum safety and health prescriptions relative to workers' exposure to risks due to mechanical vibration. This directive specifies exposure limit values and action values. It also specifies employers' obligations with regard to determining and assessing risks, sets out the measures to be taken to reduce or avoid workers' exposure. Finally, it details how to make exposed workers aware of this issue. Conclusion: In spite of some limitations, it has recently been transcribed into all national laws of member States of European union. Application: The results of the paper might help to establish or update the domestic standards on vibration.

Moving forward together

As 2010 wore to a close, major reports on privacy were released almost simultaneously in the European Union and USA. The first, published on 4 November, came from the European Commission, ‘A Comprehensive Approach on Personal Data in the European Union’. The following month two US agencies released privacy reports. The Federal Trade Commission’s report, ‘Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers’, appeared on 1 December, and two weeks later the US Department of Commerce released its green paper on ‘Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework’. These three significant and long-awaited government reports provide new insights into how regulators on both sides of the Atlantic view privacy challenges and the extent to which those views may be converging. In fact, many observers were surprised by the extent to which the three reports overlap. For example, all three reports are prompted by similar issues and address similar problems—mainly, that current approaches to data protection have become ineffective in response to the rapid expansion in information technologies and applications. All three reports explicitly recognize the tension between innovation and intrusion and acknowledge both the value and risks of information flows. Notice and choice, particular hallmarks of US privacy protection, but also found in European laws, come in for special (and well-deserved) criticism, especially in the EU and FTC reports. All three reports stress the importance of not over-focusing on notice and choice and ensuring that, when presented, notices are clear, concise, and simple to use. The reports also recognize the importance of industry responsibility, self-regulation, and international cooperation in enforcement. All three focus new attention on accountability, rather than mere compliance, as a principled basis for data protection. And all three reports were issued in draft form and specifically invited public comment, reflecting the fundamental importance of individual and industry participation in formulating workable privacy policies. These and other similarities appear to reflect growing convergence in transatlantic thinking about data protection issues. In fact, elements of each report sound themes historically associated with regulators on the other side of the Atlantic. The EU report reflects concerns about the burden of complying with data protection laws, the tension between protecting privacy and not stifling innovation, inconsistency among member state laws, and the practicality of current restrictions on international transfers of data—concerns that seasoned privacy observers might find more reminiscent of US regulators. Meanwhile, the FTC and Commerce reports expand the range of privacy principles to which companies might be held accountable, the data that might raise privacy issues (even if no unique identifiers are involved), and interests that should be protected—all points traditionally associated with European regulators. The reports are, of course, not the only sign of convergence. The FTC joined with twelve European and other regulators in March 2010 to launch the Global Privacy Enforcement Network to facilitate multinational cooperation in enforcing privacy laws. In October, the FTC was officially admitted to the annual conference of data protection and privacy commissioners. Department of Commerce officials have been

Ranking the Rules Applicable to Cross-Border Mergers

Since the implementation of the Tenth directive on cross-border mergers (CBMs) in the national laws of the Member States of the European Union, a clear statutory framework for cross-border legal mergers of limited liability companies exists which underlies the laws of different Member States of the EU. However, when implementing a cross-border legal merger, specific problems may arise in legal practice due to the principle of the cumulative application of the national merger laws and procedures governing the parties to the CBM.

Plastic, the Great Pacific Garbage Patch, and International Misfires at a Cure

I. INTRODUCTION II. BACKGROUND A. The Current State of Pacific Ocean 1. Plastics and Their Effect on Marine Environment and Human Health 2. The Papahanaumokuakea Marine National Monument B. Current International Water Quality Conventions and National Ocean Water Quality Statutes III. PROPOSAL: INTERNATIONAL OCEANIC DEBRIS PREVENTION AND REDUCTION AGREEMENT IV. CONCLUSION V. APPENDIX A: MAP OF THE PAPAHANAUMOKUAKEA MARINE NATIONAL MONUMENT VI. APPENDIX B: MIGRATION OF PLASTICS IN THE GPGP OVER 10 YEARS I. INTRODUCTION Plastic and synthetic debris in oceans have a profoundly negative effect on lives of marine animals, plants, birds, and ultimately humans. As this form of pollution endangers quality of ocean water, it likewise reduces quantity of water suitable for life. (1) This has a disastrous effect on quality and quantity of resources provided by planet's oceans. One particularly chilling example of effects of plastic is found in the world's largest landfill, located in central Pacific Ocean: Great Pacific Garbage Patch (GPGP). (2) There are currently several international treaties and agreements that target some of causes of GPGP. Nonetheless, these treaties and agreements are only as strong as laws of member states. It is up to a member state to regulate and prosecute illegal activities within its waters, or in some instances, to prosecute acts done by vessels sailing under its flag. Recognizing that [u]nregulated dumping of material into ocean waters endangers human health, welfare, and amenities, and marine environment, ecological systems, and economic potentialities, (3) United States has passed a number of statutes to prevent and remediate ocean dumping, both as a national matter and pursuant to its responsibilities under those international agreements to which it is a signatory. In spite of these bodies of law, primary cause of GPGP is ignored: land-based sources. To truly reverse course of GPGP, world's nations need to strengthen their domestic water quality and solid waste disposal laws in order to prevent introduction of plastic debris into national waterways, such as rivers, streams and canals. As will be discussed, it is these waterways that ultimately deliver vast majority of plastics to our oceans. This article will begin with an examination of current state of Pacific Ocean and its pollution levels. Specifically, causal nexus between plastic and oceanic pollutants will be discussed, with particular attention paid to Papahanaumokuakea Marine National Monument. (4) This article will then survey national and international oceanic water quality laws and agreements already in place, and identify weaknesses and strengths of each. Finally, this article will propose possible changes to Federal Water Pollution Control Act, (5) commonly known as Clean Water Act, and Solid Waste Disposal Act, as amended by Resource Conservation and Recovery Act, (6) to halt GPGP's growth and general accumulation of plastic oceanic debris. II. BACKGROUND A. The Current State of Pacific Ocean The Great Pacific Garbage Patch is an area of marine debris concentration in North Pacific Ocean, (7) comprised of North Pacific Subtropical High (PSH), (8) which is located between California and Hawaii, and recirculation gyre, which is located off coast of Japan. (9) The PSH and recirculation gyre are connected by North Pacific Subtropical Convergence Zone (STCZ), (10) which is located along southern edge of an area known as North Pacific Transition Zone. (11) Within this zone, [a] huge mountain of air, which has been heated at equator ... descend[s] in a gentle clockwise rotation as it approaches North Pole. …

Less than a State, More than an International Organization: The Sui Generis Nature of the European Union

In this paper, I show that the European Union (EU) is less than a state, but more than an international organization. Although it possesses some characteristics of both, the European Union is, I argue, a sui generis project: Although the EU wields extensive influence in some policy areas (such as competition policy or international trade regulation), its institutions’ powers are quite limited in many areas that remain firmly within the grasp of its Member States’ governments (such as security, justice, tax or redistribution policies). The European Union’s supranational elements – especially the EU laws’ supremacy over the laws of individual Member States – distinguish it, furthermore, from international organizations, such as the United Nations or the World Trade Organization. I conclude that the European Union is really a sui generis project that has not been attempted anywhere else: As such, it could be regarded as a useful case study, or perhaps even a “pilot project,” for regional integration projects elsewhere.

The Revision of European Consumer Law - Transposition of the Unfair Contract Terms Directive 93/13/EEC in Member States and Perspectives of Further Harmonisation

The paper deals with the transposition of the Unfair Contract Terms Directive into Member States Law and the perspectives of further harmonisation.

Enforcement of Arbitral Awards in Sub-Sahara Africa

As the world celebrated the fiftieth anniversary of the New York Convention in 2008 it became necessary to examine the enforcement regimes for arbitration awards in Sub-Sahara Africa. This article examines the provisions for the recognition and enforcement, and requirements for the setting aside of both domestic and international arbitral awards under the arbitration laws of OHADA member states, Nigeria and Sudan, as representative of the legal regimes in Sub-Sahara African countries. The New York Convention applies to Convention awards in half of the countries of Sub-Sahara Africa. It is therefore relevant to examine the requirements for the enforcement of non-Convention awards in those states that are members of the New York Convention, and also in those states that are not members of the New York Convention. Different arbitration laws and regimes apply in the three representative jurisdictions chosen for this comparative analysis and these are also representative of the legal regimes in those countries with arbitration laws in the region. Though a generally supportive tendency towards the enforcement of arbitral awards can be gleaned from the examination of some arbitration-related judgments, this article again highlights the importance for the remaining countries in the region yet to sign up to and implement the New York Convention to consider adopting it, and for more arbitration hearings to be held within the region.

Enforcement of Arbitral Awards in Sub-Sahara Africa

As the world celebrated the fiftieth anniversary of the New York Convention in 2008 it became necessary to examine the enforcement regimes for arbitration awards in Sub-Sahara Africa. This article examines the provisions for the recognition and enforcement, and requirements for the setting aside of both domestic and international arbitral awards under the arbitration laws of OHADA member states, Nigeria and Sudan, as representative of the legal regimes in Sub-Sahara African countries. The New York Convention applies to Convention awards in half of the countries of Sub-Sahara Africa. It is therefore relevant to examine the requirements for the enforcement of non-Convention awards in those states that are members of the New York Convention, and also in those states that are not members of the New York Convention. Different arbitration laws and regimes apply in the three representative jurisdictions chosen for this comparative analysis and these are also representative of the legal regimes in those countries with arbitration laws in the region. Though a generally supportive tendency towards the enforcement of arbitral awards can be gleaned from the examination of some arbitration-related judgments, this article again highlights the importance for the remaining countries in the region yet to sign up to and implement the New York Convention to consider adopting it, and for more arbitration hearings to be held within the region.

MOX Plant and the Espoo Convention: Can Member State Disputes Concerning Mixed Environmental Agreements be Resolved Outside EC Law?

This article examines implications of the MOX Plant European Court of Justice (ECJ) case for dispute settlement between Member States that are parties to mixed environmental agreements. In 2006, the ECJ held Ireland in breach of EC law for failing to consult the Commission about its dispute with the UK and for instituting proceedings under an international treaty rather than through EC law; this was held necessary because it concerned two Member States and EC law which the ECJ was competent to determine. The completed litigation illustrates the operation of autonomous legal systems in public international law and the proliferation of overlapping courts and tribunals. Although it clarifies the relationship between international and EC law, it leaves some questions unanswered, in particular regarding dispute settlement by Member States that are parties to mixed agreements outside EC law. Is non‐EC dispute settlement still possible, and if so how? Is this limited to judicial processes? Viewing the dispute primarily as relating to transboundary environmental impact assessement (EIA), the article examines the role of the Espoo Convention, in particular the Inquiry Commission. The failure of Ireland to challenge the UK under the EIA Directive implementing the Convention was noted by the ECJ and some commentators. What is not clear is whether the Inquiry Procedure, which is a scientific process for determining effect significance when parties dispute this, can still be used. It has not been incorporated into the EIA Directive and there is nothing comparable under EC law. Its recent application in the Danube Delta case is considered and the options for Member States outlined. It is concluded that EC Member States that use this procedure against other Member States are likely to be found in breach of EC law.

EU Enforcement Policy of Community Environmental law as presented in the Commission Communication on implementing European Community Environmental law

On 18 November 2008, the European Commission issued a Communication on Implementing European Community Environmental Law. It was accompanied by a more detailed Commission Staff Working Document. The current paper is a ClientEarth legal assessment of the enforcement and implementation policy for Community Environmental law as proposed by the Commission in this Communication. The Communication reflects the extremely good work that the legal unit in DG Environment has been undertaking for years now in the implementation of enforcement actions. It also represents a new step in establishing a coherent enforcement policy for European Community environmental law in response to new challenges. However, the Communication and the underlying enforcement policy described are incomplete and are not sufficient for achieving overall compliance with Community environmental law in Member States. On first view, the Commission’s proposals seem to constitute efforts to tackle the problem of insufficient resources so that they can be used more efficiently and greater compliance can be achieved with Community environmental law. However, it might also signal the Commission’s unstated plan, or even a strategic decision, to retreat from enforcement activities and rely more heavily on Member States to enforce Community environmental law. Any such retreat would be a derogation of the Commission’s obligations under Art. 211 of the Treaty. This article is based on a ClientEarth discussion paper presented at a round table organised by Ecosphere on the 8th of July 2009 and takes into account the information and ideas exchanged in the debate. Representatives from different services of the European Commission including the legal unit of DG Environment, and the Legal Service, as well as from consultancies, think tanks and Environmental NGOs attended the meeting.

The crumbling public/private divide: horizontality in European anti-discrimination law

The European Union has conducted, during the last decade, an active policy of adopting anti-discrimination directives that aim at ensuring greater convergence between member-state laws in this domain. One aspect of this evolution is that the relevant EU legislation forces some states to reconsider their traditional view that fundamental rights should be binding and enforceable only against state authorities and not against private bodies and individuals. This Europe-driven ‘horizontalization’ of anti-discrimination law is a major challenge for many national legal systems and contributes to the emergence of new but not uncontroversial conceptions of inclusive citizenship.

European judicial cooperation in criminal matters: what protection for individuals under the Lisbon Treaty?

The third pillar of the European Union is characterised by a poor judicial protection system. The Treaty of Lisbon overcomes the gaps in Article 35 of the Treaty on European Union, abolishing the distinction between first and third pillar and extending to this third pillar the instruments of protection typical of the first one. However, an attempt to defeat gaps and overcome some of the differences between the protections existing in the two pillars has been already undertaken by the Court of Justice in its judgments in cases Pupino and Segi, where it has applied to the third pillar legal principles (viz., the principle of consistent interpretation and the so-called substantive approach to challenge measures)—which have for long applied in the first pillar. Furthermore, the European Union legislator has acted to strengthen national mechanisms for judicial protection, by approximating the laws of member states regarding proceedings, so as to increase mutual trust and improve judicial cooperation in criminal matters. To date, among acts of secondary legislation, account has to be taken of the Framework Decision on the position of victims in criminal proceedings and the Commission’s proposal for a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union.

The Constitutional Momentum of European Contract Law On the Interpretation of the DCFR in Light of Fundamental Rights

ABSTRACT: This paper presents a constitutional analysis of the Draft Common Frame of Reference (DCFR) that has been prepared by a network of European legal scholars. The central question is to what extent the DCFR reflects fundamental values shared by the Member States. In order to answer this question, this paper analyses the relevant DCFR provisions in the light of fundamental rights, such as those laid down in national Constitutions and international treaties. Comparative remarks are made on the effects of fundamental rights in the national contract laws of various Member States (the Netherlands, Germany, England, and Italy), since the DCFR provisions that refer to fundamental rights correspond to some typical cases (or Fallgruppen) of fundamental rights application that have arisen in these countries. The structure of the analysis accordingly follows three main categories: the interpretation of the rules of contract law, non-discrimination in contractual relationships, and the validity of the contract. Attention is paid to direct and indirect effects of fundamental rights in European contract law cases as well as to the legal-political implications of these effects. On the basis of the comparative analysis, finally, it is submitted that choices will have to be made regarding the extent to which legislators and judges have to take into account the values expressed in these rights and, importantly, which form should be given to the provisions of a Common Frame of Reference in order to reach the highest possible level of protection of these values in contract law throughout Europe. Only then will the further harmonisation of European contract law truly contribute to the establishment of a European Constitution.

Environmental Law — The Black Sheep in Rome Il's Drive for Legal Certainty? Article 7 of Regulation (EC) No. 864/2007 on the Law Applicable to Non-Contractual Obligations in Context

Early in 2009, the Rome II Regulation on the law applicable to non-contractual obligations came into force in the European Community. As the very first European Regulation on choice of law, it finally enables environmental lawyers to refer to a single primary source throughout the EC when dealing with conflict of laws issues (that is, cases having a foreign element, such as those involving transboundary pollution) rather than asserting the law applicable according to the private international laws of the numerous Member States. This article focuses on the rules relating to environmental damage and, in particular, on Article 7, which appears to be the ‘black sheep’ of Rome II. In contrast to Rome II as a whole, Article 7 has no real background in European tradition; it is expressly grounded in Community law, and, last but not least, it deliberately creates uncertainty. Despite its character as an inverse mirror of the system of Rome II, Article 7 is a welcome solution in the interests of the protection of the environment and it reinforces Community policies in the absence of further harmonisation in this field since, for the purpose of deterrence, the burden of uncertainty falls on the alleged polluter.