论欧盟法在成员国的适用

欧盟法主要由欧盟与成员国签订的基础性条约、欧盟与第三国或国际组织签订的条约和欧盟通过的条例、指令和决定组成。在欧盟内部,欧盟法可以直接适用,具有直接效力,并处于优先地位。欧盟法与成员国法的关系既不同于国际法和国内法关系,也不同于联邦法与成员邦法的关系。欧盟成员国各自适用欧盟法的实践,反映了欧盟法独特的适用方式,表明国际法日益得到普遍的尊重与遵守,主权国家自觉灵活适用国际法以维护国家利益,国际组织在国际法国内适用方面发挥重要作用。这是对现代国际法的丰富与发展。     

The General Provisions of the Charter of Fundamental Rights of the European Union

The Charter of Fundamental Rights of the European Union provides the Union with a 'more evident' (as the European Council of Cologne asked for) framework of protection of the individuals before the public authorities within the European context, after more than thirty years (since the Stauder Case ) of full confidence in the leading role played by the jurisprudence of the Court of Justice of the European Communities. This new normative catalogue of fundamental rights (included the so called 'aspirational fundamental rights') implies one more instrument of protection which has to find its own place with regard to the protection afforded by the national Constitutions and the international agreements on human rights, particularly the European Convention on Human Rights, which are already a privileged source of inspiration for Court of Justice of the European Communities. It is the main objective of the General Provisions of the Charter to clarify which is that place and the relationship with those other levels of protection as managed by their supreme interpreters (i.e., the Constitutional—or Supreme—Courts of the Member States of the Union and the European Court of Human Rights).     

Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?

The number of international law obligations that have binding force on the Union and/or its Member States is sharply increasing. This paper argues that in this light the well‐functioning of the European Union ultimately depends on the protection of the principle of supremacy from law originating outside of the EU legal order. The supremacy of EU law is essential to ensuring that Member States cannot use national rules to justify derogation from EU law. As a matter of principle, international treaties concluded by the Member States rank at the level of ordinary national law within the European legal order and below all forms of European law (both primary and secondary). Article 351 TFEU exceptionally allows Member States to derogate from primary EU law in order to comply with obligations under anterior international agreements. It does not however allow a departure from the principle of supremacy that underlies the European legal order. In Kadi I, the Court of Justice of the European Union stated that Article 351 TFEU, while it permits derogation from primary law, may under no circumstances permit circumvention of the “very foundations” of the EU legal order. This introduces an additional condition that all acts within the sphere of EU law need to comply with a form of “super‐supreme law”. It also strengthened the principle of supremacy and gave the Court of Justice the role of the guardian of the Union's “foundations”. The Court of Justice acted on the necessity of defending the Union as a distinct legal order, retaining the autonomous interpretation of its own law, and ultimately ensuring that the Union can act as an independent actor on the international plane.     

欧洲一体化对英国国际私法的影响

随着 1973年英国步入欧洲共同体 ,英国国际私法不应再被孤立地看待 ,它与欧洲联盟统一国际私法及欧洲联盟成员国中的大陆法系国家的国际私法紧密地联系在一起。它们相互影响、相互渗透、相互作用、相互促进。作为欧洲联盟 15个成员国中仅有的两个普通法法系国家之一 ,而且是普通法发源地的英国 ,其国际私法受到了欧洲一体化空前的、巨大的影响。这种影响主要体现在 :推动了英国国际私法制定法的新发展 ;开拓了英国国际私法的新法源 ;创立了英国冲突法案件的新类型 ;提供了英国解决冲突案件的新方法     

Eclipse of the Constitution {Europe Nouveau Siècle}

The Court of Justice of the European Union has come to adopt a peculiar mode of balancing, revolving around a set of ‘general principles of law’, which results in key social rights at the core of the postwar constitutional settlement no longer being sheltered from review by reference to supranational economic freedoms. It is submitted that this does not only imply a kind of ideological restyling of European law, as noted in the literature but, more fundamentally, the erosion of Europe's composite constitutional architecture (at once European and national) resulting from playing down social rights qua ‘constitutional essentials’. As the new jurisprudence ‘obscures’ Europe's constitutional constellation, it is submitted that the Court should rule under the constitution and not over it.     

Democratic Policy in Europe

Abstract: This article examines the implications of European integration for democratic self-determination. Distinguishing between the dimensions of 'autonomy' and 'effectiveness', it is argued that autonomous processes of democratic participation, public discourse and democratic accountability have not yet been established on the European level. On the other hand, the effectiveness of democratic self-determination at the national level is increasingly constrained by processes of economic globalisation and even more so by the completion of the European internal market. At the same time, however, conflicts of interest among the Member States of the European Union often stand in the way of effective European problem-solving in those areas where the nation-state is losing control. It is argued, therefore, that it would be desirable to allow greater legal scope to national policy choices by limiting the reach of 'negative integration' and European competition law in those areas where the Union itself, for political reasons, is incapable of effective action.     

德国国际私法渊源的新发展

在传统上,德国国际私法的渊源包括制定法、德国缔结或者参加的各种国际私法条约、习惯法和判例法,但是随着欧盟国际私法统一化的深入发展,尤其是欧洲共同体在公司法、合同法、物权法、知识产权法、破产法和国际民事诉讼程序法等领域的立法不断加强,欧盟法中的国际私法规范逐渐渗入德国国际私法,从而使德国国际私法的渊源突破了传统的范围,越来越多地打上了欧盟法的烙印,呈现出“欧盟化”倾向。     

European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects

The judgment in Polska Telefonia Cyfrowa sheds light on the legal effects of soft law instruments that the Court of Justice of the European Union (CJEU) will recognise, while distinguishing between their legally binding force and their legal or practical effects. European soft law is now often relied on in national courts, and can have an important impact on the rights and obligations of individuals. However, some of the goals of the Commission are only partly attainable due to the specific legal status of soft law instruments, and the current languages policy of the European Union. Given that soft law was not found to expressly impose obligations on individuals, the Court held that there was no requirement to publish it in all the official languages of the European Union. This has a negative impact on transparency and legal certainty, diminishing the role of soft law instruments in promoting such goals.     

Unveiling a role for the EU? The ‘headscarf controversy’ in European schools

Many European countries have introduced laws and policies which proscribe religious clothing in public educational institutions. The European Convention on Human Rights has been deployed to uphold such actions, the European Court of Human Rights recognising that States should be able to limit the manifestation of religious beliefs. National courts considering the matter in terms of religious freedom (as opposed to discrimination) have reached similar conclusions. Most affected States are members of the European Union as well as the Council of Europe. This article will argue that it is more likely that European Union law could be engaged by an aggrieved teacher to challenge national law.     

From European Integration to European Integrity: Should European Law Speak with Just One Voice?

Abstract: This article examines whether and how the moral principle of legal coherence or integrity, which has recently been developed further as a response to disagreement in the national legal context, applies to European law. According to the European integrity principle, all national and European authorities should make sure their decisions cohere with the past decisions of other European and national authorities that create and implement the law of a complex but single European legal order. Only by doing so, it is argued, can the European political and legal community gain true authority and legitimacy in the eyes of the European citizens to whom all these decisions apply. Although European integrity is primarily a product of European integration, it has gradually become one of the requirements of further integration. The article suggests that the principle of European integrity would help dealing with the growing pressure for common European solutions under conditions of increasing diversity. It places disagreement at the centre of European politics, as both an incentive and a means of integration by way of comparison and self‐reflectivity. It constitutes therefore the ideal instrument for a pluralist and flexible further constitutionalisation of the European Union.     

Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible.     

Administrative and Court Reform in Central and Eastern Europe

Abstract:   The pre-accession programmes of the European Union and the candidate countries have focused heavily on law reform. Only relatively recently, it was recognised that successful administrative and court reform would be just as necessary in order to achieve the desired goals, namely that the candidates would eventually be able to take on their obligations as new members of the Union. Unfortunately, it has now become evident that it is easier to write new laws than to get them properly applied in every day practice. This article describes a number of cases to illustrate the problem. It shows that administrators and judges in Central and Eastern Europe have significant difficulties with Western working methods, specifically the application of international norms in the national legal order, due process and procedural safeguards, treatment of precedents, resolution of ambiguities and lacunae in the law, etc., which may in turn result in unjust and sometimes absurd application of laws. These difficulties cannot be resolved merely by organising ever more training courses and other theoretical programmes. The author claims that the majority of efforts promoting administrative and court reform applied so far have rendered only meager results. Therefore, additional and more creative measures have to be designed and implemented and have to be continued for years beyond accession of most of these countries to the EU in 2004. Otherwise, rule of law deserving its name will not materialise in the new Member States. The author concludes by offering some ideas based on many years of experience in the region.     

论欧盟法对欧盟成员国的效力

作为目前世界上最成熟和最发达的区域性国际组织,欧盟在很多方面有值得其他国际组织借鉴的地方。本文主要探讨了欧盟法对欧盟成员国的效力的问题。其中包括了欧盟法对欧盟成员国的时间效力范围和空间效力范围、欧盟法的效力优于欧盟成员国国内法、欧盟法在欧盟成员国的直接效力和间接效力以及欧盟法律与欧盟成员国法律之间的配合关系效力,以希望从中可以引出一些有益的启示。     

Forward or Back: The Future of European Integration and the Impossibility of the Status Quo

This article considers how the legal and political order of the EU can cope if the ‘Ever Closer Union’ envisaged by the Treaties ceases to be inevitable. In particular, it focuses on what are the likely consequences if previously successful integration mechanisms such as integration through law (including adventurous pro‐integration interpretation by the Court of Justice of the European Union (CJEU)) and functional integration can no longer successfully push forward the integration process. It considers whether it is possible for the Union to ‘stand still’, that is, to maintain the current level of integration without either moving forward to more intensive integration or engaging in costly and disruptive disintegration. In order to substantiate this claim, the article looks at three areas, the law of citizenship, the Eurozone and the legislative structures of the Union, showing in each case that the neither the current degree of integration nor methods used in recent times to move the integration process forward provide a long term basis for policy.     

Towards European Procedural Primacy in National Legal Systems

Abstract: In the polycentric judicial architecture of the Community, there is a rich, constant interplay between national procedural rules and European interventions. In the making of the European legal order, EC law depends on national procedural law and therefore, substantive EC supremacy depends, existentially, on procedure. In this context, the author argues that the traditional sharply defined dichotomy of national procedural autonomy versus Community law effectiveness no longer reflects the implicit course of action laid down by the Court of Justice. Instead, the European legal order has moved, as a praxis, from national procedural autonomy to a more subtle combination of national procedural competence and European procedural primacy. The rationale behind this trend testifies both to the importance of the interrelationship between procedure and substantive law in the making of Europe and to the flexibility of procedural law; EC law depends on procedural law and procedure readily submits to the demands of a new legal order. In doing so, it also creates new choices and venues for European supremacy.     

Dismantling or Strengthening Labour Law: The Case of the European Court of Justice

Abstract: The European Court of Justice is increasingly accused of dismantling labour law. The unusually sharp criticism is mainly motivated by four determining, though concealed reasons. First, the fact that many decisions address conflicts familiar to national law which are however largely repressed in the national context; second, the crisis of the national labour markets and the ensuing attempts to fence them off from the consequences of advancing integration; third, the inconsistent policies of a Union caught between the prevailing orientation towards a distinctly economic Community and the demands of a slowly progressing political Union; and fourth, the Union's difficulties to meet its own claims. As a result, the Court of Justice is more and more distracted from its judicial role and forced into a regulatory function. Hence, it is important to recall that a consistent integration process inevitably requires abandoning national regulations and creating a growing body of common rules intended to realise the common objectives. Further, the Union must more than ever attempt to correct its structural deficiencies and lay down fundamental rights, both in order to give direction to its regulatory interventions, and to limit them. Finally, the time has come for a clear specialisation of the European Court of Justice itself, as well as a systematic review of the conditions governing preliminary rulings, in order to avoid any further instrumen-talisation of the Court for the solution ofinternal conflicts of the Member States.     

Pluralism and Integrity

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits.     

REFLECTIONS ON EU INTERNATIONAL TRADE LAW: AN INTROSPECTIVE VIEW

This article presents three main arguments: First, shared competence exists between the national and supranational levels within the European Union (EU) because EU Member States do not trust the European Commission in the external relations law of the EU. Second, the EU will have greater bargaining power in international negotiations if it speaks in a single voice. Within the EU-27, we have compatible values, overlapping interests, shared goals, as well as economic, social and political ties. Therefore, there is a presumption of collective action in the EU’s external relations. However, EU Member States disagree on many issues before they start negotiations, while trying to define a mission together as partners of the European project. Third, Member States confer specific negotiating powers on the EU only when it is in their own national interest to have a common European position on international negotiations.     

The Collective Labour Law of the European Union

Abstract: The collective labour law of the European Union is embedded in a variety of legal measures incorporating principles of collective labour law reflecting national experience. The dynamic of its development has been the spill-over effect of these principles, through their translation into the status of EU law, and their development by decisions of the European Court of Justice. The article outlines a framework of principles which, it is argued, are currently embodied in the collective labour law of the EU. They include collectively bargained labour standards, workers' collective representation, workers' participation, and protection of strikers against dismissal. In addition, there is a parallel principle of collective solidarity emerging in the social security law of the EU. The principle of collective negotiation of labour law introduced by the Protocol and Agreement on Social Policy may be seen as the founding constitutional basis for the collective labour law of the European Union.     

Emerging from the Chrysalis: Union Citizenship Must Escape its Nationality-Based Shortcomings

The European Union is at the core of a supranational citizenship project. This supranational project resulted in a crystallised form of citizenship in 1992, although it has been subject to constant revision by the ECJ since then. Nonetheless, the basis on which this novel form of citizenship is predicated is the traditional national paradigm of citizenship, with all its inherent sensitivities and inhibitions replicated on the international stage. It will be suggested that this nation-centric focus is ultimately the single biggest failing of European Union citizenship and its greatest limitation. The very nature of the supranational entity is exclusionary, to the detriment of over a million individuals. This paper will address which sectors of the broader European society are most affected by European citizenship’s exclusive properties and will explore the Union’s obligations and its responsibility to include marginalised groups, particularly the stateless, refugees, and third country nationals on an equal footing with Member State nationals. The extent of the statelessness problem will form the main portion of the discussion with a view to considering the challenges these at risk individuals face on a daily basis and how they can be incorporated in the most effective way within the Union framework: such incorporation will, of necessity, also mandate an examination of surrounding human rights issues, all the more pressing in light of the post-Lisbon Union commitment to accede to the European Convention on Human Rights. The stateless are not the only marginalised group found in Union territory: third country nationals who do not benefit from Directive 2003/109 nonetheless make a considerable contribution without receiving the same rights and freedoms as those serendipitous enough to call themselves ‘long-term residents’. The human rights and democratic bases of the Union appear to be undermined by the restrictive approach to inclusion that has, to date, been taken when addressing non-nationals’ incorporation under the citizenship umbrella. This paper aims to assess the shortcomings of the European Citizenship project by highlighting the effects of its exclusivity and the limitations of its notion of inclusivity. Rather than establishing a single supranational form of citizenship the Union has, instead, succeeded in developing a multi-tiered and hierarchical construct, far removed from the notion of ‘a broader community of peoples’. It will culminate in a proposal for a significantly modified vision of Union citizenship which would seek to overcome the current version’s apparent limitations, elevating the standing of the at risk groups in such a way that their contribution to Union life is fully, and deservedly, recognised.