The EU Restriction of Hazardous Substances Directive: Problems arising from Implementation Differences between Member States and Proposed Solutions

Directive 2002/95/EC, the Restriction of Hazardous Substances or 'RoHS' Directive, restricts the use of environmentally hazardous substances in electrical and electronic equipment distributed and sold in the EU from 1 July 2006. The Directive's objectives are to harmonize EU Member States' national legislation and protect human health and the environment. This article reveals differences in the implementation of the RoHS Directive at the time it took effect. Differences were revealed in the analysis of results obtained from telephone interviews conducted with all but four of the 25 EU Member State RoHS enforcement officials. Differences in implementation created barriers to the achievement of the RoHS Directive's objectives and caused problems for producers of electrical and electronic equipment. The article attributes the principal cause of differences in implementation to insufficiently detailed text in the RoHS Directive. The article also considers how barriers and problems could have been prevented and makes proposals to solve them.     

Interests,Instruments and Institutional Preferences in the EU Comitology System: The 2006 Comitology Reform

This paper seeks to reveal the institutional interests of the Council of Ministers, the European Parliament and the Commission in the comitology system. This is done by an investigation of the 2006 comitology reform, which introduced the regulatory procedure with scrutiny. This reform was the result of developments in four areas: the Lamfalussy reform in the area of financial regulation; the controversial use of comitology in the area of GMOs, food safety and the environment; the failed Constitutional Treaty; and the amending of the 1999 comitology decision. The analysis shows that the reform was the result of a two‐dimensional constitutional struggle. The first dimension concerns the relative supervisory position of the two legislative actors, the Council and the European Parliament. The second dimension concerns the relationship between the legislative and the executive branch of the EU system. In theoretical terms, the analysis demonstrates an example of T.M. Moe's ‘politics of structural choice’. The paper ends by drawing lessons for the negotiations on the new comitology system following the Lisbon Treaty.     

The European Parliament and Comitology: On the Road to Nowhere?

The European Parliament has generally been deeply distrustful of the comitology system, primarily on the grounds that it allows the national administrations to undermine its supervisory role in the area of implementing legislation. Parliament has therefore sought to use the political, budgetary and jurisdictional means at its disposal to counteract the spread of comitology, or at least to promote the less intrusive forms of committee procedure. These initiatives have not, for the most part, been wholly successful; neither the interinstitutional agreements nor Parliament's arguments before the Court of Justice have produced the results it had hoped for. Parliament has been able, however, to use its Maastricht powers to influence the choice of committee procedure included in legislation adopted under codecision, and its budgetary tactics have forced the Commission to rationalise somewhat the annual expenditure on committees of all kinds and to bring a modicum of transparency into their operation. The imminence of the intergovernmental conference led to a suspension of hostilities towards the end of 1996.     

Keywords,case law and the Court of Justice: the need for legislative intervention in modernising European trade mark law

Recent preliminary references to the CJEU on online keyword advertising and registered trade mark infringement have exposed the challenges facing EU registered trade mark law in its response to new technologies. These cases and the challenges they pose provide a timely prism through which to examine the European trade mark law-making process and the role of the CJEU within that process. This article will employ an analysis of the way in which the CJEU has developed certain key new aspects of the law on ‘infringing use’ to explore concerns over the CJEU's role and approach. It will be argued that, driven by policy considerations, the CJEU has acted creatively to develop the law of infringement in ways that cannot be sustained by the TMD and CTMR and which are likely to cause increasing uncertainties going forward. With the European Commission currently considering reform of Trade Marks Directive 2008/95/EC and Community Trade Mark Regulation 207/2009/EC, this paper will argue that there is a need for more comprehensive and forward-looking legislative intervention than has yet been proposed and that such intervention will be essential to restoring balance in the European trade mark law-making process.     

The European Parliament and the Future of Comitology after Lisbon

The history of comitology—the system of implementation committees that control the Commission in the execution of delegated powers—has been characterised by institutional tensions. The crux of these tensions has often been the role of the European Parliament and its quest to be granted powers equal to those of the Council. This process came to a head with the 2006 Comitology reform and the introduction of the regulatory procedure with scrutiny (RPS). After just over three years of experience with the RPS procedure, the Treaty of Lisbon has made it redundant through the creation of Delegated Acts (Article 290 TFEU). This article aims to evaluate the practical implications that Delegated Acts will entail for the Parliament, principally by using the experience with the RPS to better understand the challenges ahead. This analysis will be of interest to those following the study of comitology, formal and informal inter‐institutional relations and also to practitioners who will have to work with Delegated Acts in the future.     

The Proposal for a Directive on the Patentability of Computer-implemented Inventions

The European Commission Proposal for a Directive on the Patentability of Computer-implemented Inventions is an important step towards harmonising and clarifying the patent protection available for such inventions in European Member States. This paper discusses the proposed Directive, its potential impact and some initial reactions from those in the software industry. It outlines the background to the Proposal, discussing briefly the exclusion of computer programs 'as such' from patent protection under the European Patent Convention (EPC). The paper observes that, in its current form, the proposed Directive will narrow the protection currently available to patentees and that some thought should be given to transitional provisions. It concludes that, whatever balance is struck as the Directive progresses to adoption, the Directive will have the benefit of providing a mechanism for aligning the approach of European Member States to patenting computer-implemented inventions. 'Educational initiatives' may, however, be required if European companies, in particular Small and Mediumsized Enterprises (SMEs), are, as intended by the Commission, to view the harmonization and greater transparency provided by the proposed Directive as an incentive to use patents to exploit their computer-implemented inventions.     

Telecommunications terminal equipment: EEC commission opens the market

The 12 Member States of the European Economic Community (EEC) are legally obliged by the Treaty of Rome, as amended by the Single European Act, to abolish all of the remaining physical, technical and fiscal barriers between them by 31 December 1992. The Single European Act, which sets the 1992 deadline, defines the envisaged internal market as “an area without internal frontiers”.The creation of a common European market for telecommunications services and equipment is both an essential prerequisite and an important part of the “internal market”.In its Green Paper on the Development of the Common Market for Telecommunications Services and Equipment — “the Green Paper”¹⁾) — and a follow-up Communication²⁾, the Commission of the European Communities (“the Commission”) has set forth its main policy proposals in the telecommunications field. Implementation of these policy proposals by means of Community law directives is progressing rapidly, in particular with respect to terminal equipment. On 16 May 1988, the Commission issued a“Commission Directive on Competition in the Markets in Telecommunications Terminal Equipment” — “Terminal Equipment Directive” —³⁾ based on its regulatory powers under Art. 90(3) of the Treaty of Rome (“EEC Treaty”).This article explores the regulatory scope of the Terminal Equipment Directive which has recently been challenged by the French government before the European Court of Justice.     

The European Parliament in Treaty Reform: Predefining IGCs through Interinstitutional Agreements

Abstract:  Despite the fact that Interinstitutional Agreements (IIAs) are an established part of the mass of informal and formal rules structuring EU decision-making and interinstitutional relations, there is as yet no common understanding of their role and functions in the institutional and legal system of the EU—neither in political science nor legal studies. Tracking the evolution of the European Parliament's competencies in three areas where IIAs figure prominently—comitology, legislative planning, and the establishment of procedures to hold the Commission accountable—this article seeks to show that the European Parliament strategically uses IIAs as instruments to wrest competencies from the Council and the Commission. Having no formal say in treaty reform, the European Parliament 'creates facts' through informal but politically binding IIAs hoping that, once established, it can achieve a later codification of its new rights at IGCs. Viewed this way, the analysis of the role of IIAs in Treaty Reform could help to explain a still under-researched puzzle in European integration theory, namely the incremental parliamentarisation of the institutional system of the EU over the last two decades.     

(Non-)complexity through the eyes of MiFID

The European Commission recently published legislative proposals to reform the Markets In Financial Instruments Directive (MiFID). This note elaborates on the proposed shift in classification of “structured Undertakings for Collective Investment in Transferable Securities (UCITS)”. While MiFID I labeled all UCITS “non-complex”, MiFID II deems all structured UCITS “complex”. We propose a logical and consistent framework to refine this dichotomy and identify a limited number of product types amongst the various kinds of structured investments. The classification is traceable, comprehensible and is proposed as the basis of a “complexity indicator” that surpasses the current generalisation.     

The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law

The legislative procedure established by Articles 138-139 of the Amsterdam Treaty is sensitive with regard to democratic prerequisites, but does not, in the final analysis, breach the formal principle of democracy established under Community law. Although the establishment of a parliamentary right of consultation is desirable, sufficient democratic legitimation is nonetheless supplied by virtue of Council and Commission participation within the legislative procedure and by their unlimited right to examine and reject substantive provisions designed by management and labour. By the same measure, the participation of management and labour in the Articles 138-139 legislative process is not of itself sufficient to create democratic legitimation. However, although management and labour organisations might never claim to represent the public of Europe as a whole, they can contribute to the 'substantive' legitimacy of European social law-making where they are adequately representative of persons and groups affected by EC legislative acts and take positive steps to ensure that the interests of such persons are reflected in secondary EC law. Accordingly, the Commission and the Council should review the representative nature of organisations engaged in European social law-making, paying particular attention to under-represented interests and, if necessary, should also make use of their right of rejection where privately negotiated agreements neglect these interests.     

The new media landscape: Regulating the idiot boxes

The European Commission has proposed a modernization of the Directive 89/552/EEC, also known as the TV without Frontiers Directive (TVWF). The draft Audiovisual Media Services Directive suggests extending regulation to cover a broad range of new and emerging audiovisual media services. The proposal unleashed fierce opposition from all sectors. The most contentious issue concerns the distinction between the two types of audiovisual media services (linear and non-linear), which are distinguished from each other by the degree of user control. The Commission has failed to provide any convincing argument to prove the necessity of imposing a new regulation and the inadequacy of the current regulatory framework. This paper analyses the proposed Audiovisual Media Services Directive.     

Illegal access to information systems and the Directive 2013/40/EU

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013, on attacks against information systems, came into force on 3 September 2013, replacing Council Framework Decision 2005/222/JHA. It maintains existing offences and criminalizes new activities such as illegal interception and the usage of certain tools for committing offences. The offence that is the focus of this article – illegal access to information systems – is set out in Article 3. It represents a change from the wording of Art 2 (2) of the Framework Decision 2005/222/JHA in that under Art 3 of the Directive the incrimination of illegal access to information systems now depends upon whether such access infringes a security measure. This paper provides an overview of the impetus for the introduction of cybercrime laws and analysis of the key provisions of the Directive before exploring whether the wording of Art 3 is a sensible legislative approach.     

Privacy and the regulation of 2012

This paper explores the European Commission’s proposal for a new Regulation to update and reform data protection law in Europe. As regards the Regulation itself, without presenting an exhaustive analysis of all the provisions, this paper aims to highlight some significant changes proposed to the data protection regime by comparison between Directive 95/46 and the proposed Regulation. It takes particularly into account legislative innovation concerning data protection principles, data subjects’ rights, data controllers and data processors obligations, and the regulation of technologies. Before analyzing these innovations, it introduces some considerations about the Commission’s choice to use a Regulation instead of a Directive to harmonize national data protection regime.     

欧盟电子废弃物指令适用范围探析

欧盟的电子废弃物指令(包括WEEE指令和RoHS指令)是目前影响范围最广、适用电子电气设备种类最多的电子废弃物管理法,不论从对欧贸易的角度来说,还是从我国自身立法的角度来看,都应对其认真研究.目前,国内对这两个指令的研究已经展开,但是对其适用范围尚缺乏系统深入的探究,本文准备弥补这一空白.     

Electronic databases: Protecting your investment – An analysis of the legal rights in electronic databases under UK law

Electronic databases are an important part of the information economy. They are now one of the key platforms for the distribution of information and other contents. The European Court of Justice, in November 2004, gave its first rulings on the scope of database right, introduced by Directive 96/9/EC on the legal protection of databases. These rulings significantly curtail the scope of that right, and limit the protection afforded to database producers under that Directive. The UK courts, in January of last year, handed down a judgment which has important implications for the copyright protection afforded database structures and to “look and feel” elements of database application software, and the scope of Section 50D of the Copyright, Designs and Patents Act 1988 (which sets out certain statutory permitted acts in relation to database use). This article looks at the implications of these judgments, it analyses some of the key legal rights that can apply to electronic databases, and the increased importance that rights of confidentiality and contract are likely to have on the commercialisation of electronic databases in light of these rulings.     

Data processing by police and criminal justice authorities in Europe – The influence of the Commission's draft on the national police laws and laws of criminal procedure

The proposal for a fundamental reform of the European data protection law, published by the EU Commission on 25 January 2012 is composed of two elements. Apart from a General Data Protection Regulation, the Commission proposes a second regulatory instrument, namely a Directive with regard to data processing by police and criminal justice authorities that shall supersede the Council Framework Decision 2008/977/JHA. This paper seeks to analyse the draft Directive in the context of the entire reform approach and scrutinizes a number of specific issues in regard to the scope, the requirements of data processing, notification duties and data transfer to third countries.     

The dark side(s) of the EU Directive on copyright and related rights in the Digital Single Market

China-EU Law Journal - The article examines some pivotal aspects of Directive (EU) 2019/790, which is the new legislative act adopted by the European Union to adapt copyright to the evolving...     

The proposed data protection Regulation replacing Directive 95/46/EC: A sound system for the protection of individuals

The recent release by the European Commission of the first drafts for the amendment of the EU data protection regulatory framework is the culmination of a consulting and preparation process that lasted more than two years. At the same time, it opens up a law-making process that is intended to take at least as much time. The Commission has undertaken the herculean task to amend the whole EU data protection edifice, through the introduction of a General Data Protection Regulation, intended to replace the EU Data Protection Directive 95/46/EC, and a Police and Criminal Justice Data Protection Directive, intended to replace the Framework Decision 2008/977/JHA. This paper shall focus at the replacement of the EU Data Protection Directive by the draft General Data Protection Regulation. Due to the fact that the draft Regulation is a long (and ambitious) text, a selection has been made, with the aim of highlighting its treatment of basic data protection principles and elements, in order to identify merits and shortcomings for the general data protection purposes.     

Electronic health record: Wiring Europe’s healthcare

The European Commission wants to boost the digital economy by enabling all Europeans to have access to online medical records anywhere in Europe by 2020. With the newly enacted Directive 2011/24/EU on patients’ rights in cross-border healthcare due for implementation by 2013, it is inevitable that a centralised European health record system will become a reality even before 2020. However, the concept of a centralised supranational central server raises concern about storing electronic medical records in a central location. The privacy threat posed by a supranational network is a key concern. Cross-border and Interoperable electronic health record systems make confidential data more easily and rapidly accessible to a wider audience and increase the risk that personal data concerning health could be accidentally exposed or easily distributed to unauthorised parties by enabling greater access to a compilation of the personal data concerning health, from different sources, and throughout a lifetime.     

‘Delegated’ Legislation in the (new) European Union: A Constitutional Analysis

This article brings classic constitutionalism to an analysis of delegated legislation in the European Union. To facilitate such a constitutional analysis, it starts with a comparative excursion introducing the judicial and political safeguards on executive legislation in American constitutionalism. In the European legal order, similar constitutional safeguards emerged in the last fifty years. First, the Court of Justice developed judicial safeguards in the form of a European non‐delegation doctrine. Second, the European legislator has also insisted on political safeguards within delegated legislation. Under the Rome Treaty, ‘comitology’ was the defining characteristic of executive legislation. The Lisbon Treaty represents a revolutionary restructuring of the regulatory process. The (old) Community regime for delegated legislation is split into two halves. Article 290 of the Treaty on the Functioning of the European Union (TFEU) henceforth governs delegations of legislative power, while Article 291 TFEU establishes the constitutional regime for delegations of executive power.