The Principle of Conferred Powers and the Division of Powers Between the European Community and the Member States

This article is a reflection about the division of powers between theEuropean Community and the Member States. It focuses on the adventuresand misadventures of the principle of conferred powers in the process ofEuropean integration. Section I is about the initial vertical divisionof powers in the European Community. Section II is dedicated to ananalysis of the progressive erosion of conferred powers during the 70'sand the 80's. Section III refers to the slow return to the applicationof the conferred powers principle that started after the Single EuropeanAct.     

The Legal Situation on Stalking among the European Member States

Stalking became a subject of academic and social concern in Europe in the mid-1990s. Shortly afterwards the issue of legislation became the subject of debate in some countries and in 1997 the United Kingdom was the first European Member State that passed anti-stalking legislation. Denmark constitutes an exception because its Criminal Code of 1933 contains a provision which also deals with stalking. Other States that up to now have passed legislation against stalking in Europe are Belgium, the Netherlands, Germany, Malta, Ireland, Austria and, last in order of time, Italy. Where an anti-stalking law exists, legislators have introduced a new article into the existing Penal Code or have amended an article still in force for similar conduct, or have introduced a specific Act against Harassment or Domestic Violence which is intended to cover not only such conduct but also stalking. In the remaining European countries where an anti- stalking law does not exist, it is possible to prosecute stalking only when the behaviour amounts to crimes prosecutable under other existing norms. This article analyses legal regulations on stalking across European Member States in civil and criminal justice considering specific laws addressing the phenomenon or, alternatively, other laws under which stalking can be prosecuted. In the conclusions some advantages and disadvantages of European anti-stalking laws are discussed and some suggestions are given for future work in order to improve the protection of the victims of stalking.     

欧共体竞争法与成员国竞争法关系初探

由于均对各自适用范围做扩张性解释,因而欧共体竞争法与成员国竞争法在适用范围上不可避免地产生了重叠, 二者构成了一利双重控制体系。但这种双重控制体系又是有条件的双重控制体系,即当二者之间有冲突时,应以共同体竞争法的效力为优先。随着统一大市场的形成以及从属原则被确立为欧盟法的基本原则,这种双重控制体系面临瓦解的可能,在未来有必要对两套法律体系的适用范围进行重新划定,从而使其各行其是,互不干涉,而且预计成员国竞争法的地位会得到相应提升,并发挥其应有的作用。     

欧洲逮捕令在欧盟成员国国内的适用问题研究

欧洲逮捕令是在欧盟范围内取代传统引渡制度而施行的一种逮捕和移交人犯的国际刑事司法合作新机制.规范欧洲逮捕令的框架决定对欧盟成员困具有强制约束力,但不具有直接效力,各成员国必须采取必要措施以使本国国内法与框架决定的规定相符合.欧洲逮捕令在有的成员国遭遇宪法问题,有的成员国在适用时表现出对其他国家法律制度的不信任,还有一些国家的国内转化法存在着与框架决定不尽一致的规定.但从总体上来看,欧洲逮捕令在欧盟范围内已得到全面执行并取得了初步成功.     

Horizontal Coherence and the External Competences of the European Union

Abstract: The concept of horizontal coherence, or inter‐pillar coherence, appears to be consubstantial with the external action of the EC/EU: it can be defined as the absence of contradictions between the policies of the European Community and the Common Foreign and Security Policy, or CFSP (consistency) on the one hand, and the achievement of a synergy between these policies (coherence) on the other hand. First considered as a political requirement, its best expression is located in the Article 3 of the Treaty on the European Union. The practice of European foreign policy has demonstrated the importance of this requirement: the control of exports of dual‐use goods as well as the adoption of sanctions, whether on the basis of Article 301 EC, or in application of international agreements with third states, have given the example of overlapping competences. Besides, this overlap has been reflected in the internal organisation of the institutions (allocation of portfolios in the European Commission, conflict between the Political Committee and the Committee of the Permanent Representatives in the Council of the EU). However, the answers to these problems have been far too timid: the adoption of an integrated approach (conflict prevention) as well as the institutional adaptations of the Treaty of Amsterdam do not compensate for the absence of a vision of the European foreign policy which would overcome the old cleavage between federalism and intergovernmentalism. Indeed, it seems to us that much more innovative solutions are needed, such as an evolution towards the binding character of the coherence requirement, which would pave the way to a coherent European foreign policy, comprising external relations and CFSP (including the defence dimension).     

Security Council's Anti-terror Resolutions and their Implementation by Member States: An Overview

In the framework of the fight against international terrorismthe UN Security Council (SC) has adopted targeted sanctionsagainst individuals and corporate entities. Furthermore, ithas imposed on states a number of obligations of a general nature.The implementation of all these measures — some of whichbear on sensitive aspects of criminal law and procedure —is left to the Member States. This article attempts to providean overview of national implementation practices, based on thenational reports submitted by states pursuant to the relevantSC resolutions. Besides the many difficulties encountered bystates in implementing SC resolutions, the encroachment of anti-terrormeasures on human rights is a cause for concern. The currentattitude of the SC, which has integrated human rights considerationsinto the security concerns that inspire its action under ChapterVII of the Charter, should enhance the perception of legitimacyof its anti-terror policy and, arguably, improve the effectivenessof its measures.     

论欧盟法律与其成员国法律之间的关系

本文主要阐释了欧盟的法律渊源并通过判例解析了欧盟法律对其各成员国的直接效力原则和优先适用原则;以立法和司法实践说明了欧盟法律与其成员国法律之间的相互影响,进而揭示出当代两大法系相融合的某种趋势;论述了欧盟及其成员国分别对外签订的条约之间的相互关系。     

The “Conventionalization” of Safety Crimes in the Post-Communist New Member States of the European Union

This article begins by presenting a brief overview of the neglected area of “safety crime” in the post-communist states of Central and Eastern Europe. Quantitative and qualitative evidence is reviewed, suggesting both the widespread nature of safety crimes, and a deteriorating work environment, in which safety crimes are routinely tolerated. Evidence of the “institutionalized tolerance of non-compliance” is provided through a case study of labor inspection in the new member states, focusing on Latvia, currently the worst performer in health and safety in Europe. Against a background of general violations of labor rights, current innovations in European-level regulatory strategies are critiqued, in particular, the shift towards “soft law” and compliance-based strategies, relying on appeals to corporate social responsibility, together with the encouragement of various forms of voluntary initiatives. It is suggested that such (self)-regulatory strategies may be inappropriate as forms of crime control in the new member states of the European Union. In effect, a convergence domestic and European Union policies may open the door to the further “conventionalization” of safety crimes in the new member states.This article is based on a paper first presented to a seminar, “Regulating Corporate Crime and White-Collar Crime: Developments across Europe”, Finnish Police College, Helsinki, 3–4 September, 2004. Financial support for the research was provided by a European Commission Marie Curie chair award (no: 509727). The author would like to thank Kit Carson and Steve Tombs, as well as the participants in the Helsinki seminar for their helpful comments. Any errors remain those of the author alone.     

从宪法条约看欧盟与成员国之间的权力分配——兼评法、荷对宪法条约的否决以及欧盟的意义

为了解《建立欧洲宪法的条约》中对于成员国与欧盟机构之间的权力分配,本文从:欧盟权限的范围、欧盟如何在其授权范围内进行立法决策、欧盟法的效力等三个角度对该条约进行了分析。可以看出,宪法在对欧盟进行广泛授权的同时,仍然从根本上维护了成员国的主权,宪法条约并没有从根本上推进原有的条约体系已经达到的一体化的程度。但兼顾了一体化和各民族特征的欧盟本身正是二十世纪政治文明最重要的创新性成果,是其他国家和地区学习的典范。     

Independence of the Court of Justice of the European Union: Unchecked Member States power after the Sharpston Affair

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited from the cardinal principle of judicial independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards national courts. Questions have rarely arisen, however, about judicial independence of the CJEU. The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal order? This article reflects on the judicial independence of the CJEU, and offers reflections on how it can be preserved in the future.