Strict Compliance versus Commercial Reality: The Practical Application of EC Public Procurement Law to the UK's Private Finance Initiative

Abstract: The Private Finance Initiative (PFI) has been described as the largest cultural change for decades in the way the public sector operates in the United Kingdom. Most of these projects have to be delivered within the framework of public procurement law. This article investigates whether the divergence between the legal framework and the commercial requirements of PFI has resulted in the development of a ‘PFI procurement practice’. If so, it is aimed to examine the reasons for developing the practice and whether it deviated from procurement law. The results of the qualitative empirical study, on which the article is based, are not limited to PFI procurement, but have wider implications for EC procurement law and the general debate over whether it is suitable for modern procurement practice. The findings are also of interest to legal sociologists and European Union lawyers as they describe circumstances under which addressees of the law deviate from supra‐national rules.     

The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing

Data plays a crucial role for society. Accordingly, building a ‘single market for data’ by increasing the availability of public and private data ranks high on the EU policy agenda. But when advancing legal data sharing regimes, there is an inevitable need to balance public and private interests. While the European Commission continues to push for more binding rules on data sharing between private businesses, public undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this article inquires into the recast Open Data and Public Sector Information Directive, the Data Governance Act, and different national rules which regulate access to and re-use of public undertakings' data. It identifies five striking characteristics and discusses their potential and limitations for regulating data sharing by private undertakings. The implications serve as a guidepost for advancing the wider debate on building a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act.     

Treating or Tracking? Regulatory Challenges of Nano‐Enabled ICT Implants

The increasing commercialisation of human ICT implants has generated debate over the ethical, legal, and social implications of their use. The convergence of nanotechnologies with ICT is likely to further challenge the current legal frameworks that regulate them. The aim of this article is to examine the effectiveness of the European data protection legal framework for regulating this “next generation” of nano‐enabled ICT human implantable devices. The article highlights the potential regulatory challenges posed by the applications and makes a series of recommendations as to how the current European legal framework on data protection will respond to them.     

The European legal framework on cybercrime: striving for an effective implementation

This article analyzes the European legal framework on cybercrime. Initially, it argues the challenges of cybercrime to traditional criminal justice systems. Subsequently, it focuses on the criminal law framework on cybercrime with a mainly European perspective. The European legal framework provides a three-path solution: the reduction of frictions among national legislations, the introduction of new investigative powers and the facilitation of international cooperation. The article presents and discusses each solution. Further, it argues that the effective implementation of the main legal instruments does not seem to depend on the legal enforceability of these international measures. Contrarily, other, non legal, factors such as national security, politics, the economy and the public opinion appear to stimulate the spontaneous implementation of the European legal framework. In this context, the added value of the EU action is rather low, although the Treaty of Lisbon and the Stockholm Programme may improve this situation in the long term.     

Economics of the 96/92 Directive with Reference to Italian Electricity Market Liberalisation Process

This paper contains an economic review of the law regulating the liberalisation process now under way in the Italian electricity sector. The legal framework is presented focusing first on Community rules, in particular Directive 96/92, which provides for common rules for the internal electricity market, and then on the recent Italian implementation decree no. 79 of 1999. The part concerning the law is then connected with a part where the issue of liberalisation of the electricity sector is tackled in economic terms, with special focus on transition from the public monopoly that has characterised the Italian experience for some time, and also on the new interpretation of the traditional theory of natural monopoly. On the base of the legal framework and the economic theories, the features of each components of the electricity sector is finally analysed in terms of competitiveness: in particular, the future market configuration is considered for generation, for transmission, for distribution, and, for the whole market.     

The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration

The traditional partition between public and private law continues to reinforce the belief that public law is the only proper realm of political debate, where decisions having redistributional consequences are and should be taken. This allows for a seemingly minor role of private law in the debate on European integration. This article challenges such a traditional image by noticing the central role of private law in the several legal systems of the European Union, and by analysing a few instances of resistance to private law integration. The analysis suggests that, while fully engaged in debating the public law implications of integration, Member States strive to keep civil adjudication within their control and to protect the self–contained, autonomous structure of their codes (or sets of private law doctrines) from the disruptive impact of European legislation. Integrationist pressures compel national legal actors to make explicit the social and economic choices underlying private law rules. Against such pressures, States' resistance may take the shape of formalist entrenchment.     

The exploitation of Business Register data from a public sector information and data protection perspective: A case study

Business Registers (BRs) are a very important information resource for investors, creditors, financial institutions and public authorities. The possibility to aggregate and interconnect these data at a European level could enhance the transparency of companies towards those actors and add a great deal of value to the raw Business Register data. The European BRITE project intended to provide adequate tools to meet these demands. BRITE will provide easier access and cross-border interoperability of Business Register data throughout Europe. On the other hand, the processing of BR data within the BRs and BRITE triggers several important European legislations such as the Data Protection Directive and the Directive on the re-use of public sector information. In this paper, the processing of BR data will be analysed from the perspective of both data protection and public sector information laws, analysing as well the relation between both regulations. Do these regulations strike an optimal balance between the interests of private data vendors to re-use BR data and enhance business transparency and the need to protect the personal data of natural persons?     

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.     

European Corporate Laws, Regulatory Competition and Path Dependence

Beyond the well-known discussion in regard to the Cassis de Dijon of the European Court of Justice, implying the mutual recognition of national product regulations, the topic of mutual recognition and regulatory competition has emerged again in the realm of European corporate laws (“Centros” of the ECJ in 1999). Can effective competition among European corporate laws be expected? In the US a broad discussion has developed whether the existing competition process among US corporate laws leads to permanent legal improvements by legal innovations or to a race to the bottom. Beyond this discussion a new point has been raised recently: the possibility and importance of path dependence as a potential problem for the efficacy of competition among corporate laws (lock-ins). For the analysis of this problem we apply the concept of technological paradigms and trajectories to legal rules in corporate law and introduce “legal paradigms,” which direct the search for better legal solutions in certain directions and might be stabilized by certain factors (esp. complementarities to other legal rules) leading to considerable path dependence effects. Our results show that path dependence might play a crucial role for competition among European corporate laws, even if the principle of mutual recognition would be introduced to corporate laws in the EU, implying that competition among European corporate laws might be difficult and sluggish. Consequently the question arises whether additional meta-rules should be established that might mitigate the problem of path dependence and lock-ins in regulatory competition in corporate law.     

European Law and International Regimes: The Features of Law Beyond the Nation State

Different forms of law are perceived of as possessing differing degrees of legal quality. A quality continuum suggests itself, running from 'high quality' national law, through to 'lesser quality' European law and to 'low quality' international law. This article seeks to explain the perceived differences in the quality of these laws with reference to legal theoretical perceptions of what it is that constitutes the law's quality. It argues that only a theory of law which identifies the core of the law's integrity as lying in its ability to act as a fulcrum between spheres of social and public discourse and the exercise of power can fully explain the divergence in legal quality between national, European and international law. With specific regard to the quality of European law, it concludes by arguing that it is weakened by its relative lack of social internalisation—in comparison with a higher degree of legal and political internalisation—within the European public.     

The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective

If private law is defined simply as a matter of core areas such as substantive contract, torts, property or family law, it may be doubted whether European law has significantly affected national private law systems; or conversely, whether national private law is relevant to European integration. However, this paper argues that such conclusions are misleading: while there have been very few European interventions into the core areas of civil codes or the common law, the integration process has impacted forcefully upon deeper structures of national legal systems. Challenging the institutional embeddedness of national private law, European primary and regulatory law has remodelled (public) concepts of private autonomy, the realm of private governance and the social responsibility of private actors. How then to present and evaluate this indirect impact? Drawing upon concrete examples, this paper seeks first to understand this European challenge to the interdependence of national private law, borrowing from political science's analytical tool of multi-level governance to highlight the complex interrelations between European rights and regulatory law and national private law; and secondly attempts actively to assess the legitimacy of the impact of integration upon private law with the aid of the explicitly normative theory of deliberative supranationalism. However, precisely because Europe remains in a state of flux, and dependent upon contingent political processes, no final conclusions are drawn: as is the case with so many areas subject to integrationist logic, the contours of the ‘new European private law’ cannot be laid down in advance, and are instead a long and weary matter of cooperation and fine-tuning between national and European judiciaries.     

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.     

Legal Consequences of EU Accession for Central and Eastern European Health Care Systems

Since the ratification of the Europe agreements, Eastern European accession countries are transposing community law into their national legal framework. The law approximation process in the field of health concerns three themes, viz public health, health–related issues, and the internal market. Although the health acquis has been largely focused on public–health issues, it is increasingly becoming clear that internal market treaty provisions may also affect health–related rights. For candidate member states this means that the common market has important consequences for health and their health–care systems. Therefore, this paper will examine the impact of relevant treaty provisions on acceding countries' (public) health legal framework.     

The ITS Directive: More than a timeframe with privacy concerns and a means for access to public data for digital road maps?

Roads are ever more congested, pollution keeps rising and traffic-related deaths remain at unacceptable levels. It is clear that society’s needs with regard to transportation and mobility have become unsustainable. Intelligent Transport Systems (ITS) are often heralded as a potential solution to this problem, yet have still to yield tangible results. The EU has, however, adopted the ITS Directive, aiming for an EU-wide implementation of ITS solutions. Three questions are raised. First, can the ITS Directive really provide for the required substantial provisions in this field? Second, as ITS solutions are often deemed to be pervasive and intrusive, how does the ITS Directive interact with the EU legal framework on privacy and data protection? Third, given the involvement of private commercial entities in the field of providing road, traffic and travel data, can a public–private partnership be found to allow for the re-use of both public and private sector data in ITS solutions?     

State aid control in the modernisation era: Moving towards a differentiated administrative integration?

Despite contentions that state aid control is an instance of direct execution, the State Aid Modernisation (SAM) package has largely dispersed responsibility for giving effect to the common legal framework across national administrations. In this setup, the effectiveness of state aid law is confronted with asymmetric capacities, diffuse application of complex rules and difficulty in keeping dispersed powers under control. This article combines selected evidence on the operation of state aid control with a multidisciplinary analysis of the functioning of integration mechanisms in the European administrative space. The aim is to examine the potential effects of SAM. It contends that, while the reform has strengthened the Commission's dominance, the instruments of administrative integration might fail to secure adequate capacities and implementation performances at national level, due to constitutional constraints and opposing forces. This effect, it is argued, could be divisive, and risks undermining the integrity of the internal market.     

Enforcing eAccessibility: is the current legal framework adequate?

Regulating the web and information and communication technology (ICT) is a hot-button issue that often becomes misconstrued as the self-interests of private parties. In fact, ensuring accessibility for people with disabilities is often not a priority for companies that provide ICT goods and services. In this manner, people with disabilities are excluded from the global ICT market, which presents a problem of rights assessment and a market gap. By examining the way law and policy implement and augment the state of eAccessibility, this article aims to critically assess the eAccessibility legal framework. It focuses on the United Nations Convention on the Rights of Persons with Disabilities, the European Union relevant legislation, and on national legislation, taking as a case study two representative countries: Ireland and Spain. These countries have been chosen due to their high and low ‘Measuring eAccessibility’ scores, respectively. The particular technology chosen for examination includes websites, self-service terminals and mobile phone apps.     

Political Self‐control and European Constitution: The Assumption of National Political Loyalty to European Obligations as the Solution to the Lex Posterior Problem of EC Law in the National Legal Orders

Current understandings of the constitutional effectiveness of EC law emphasise the European Court of Justice's (ECJ's) claims of supremacy and direct effect, and the acceptance of those claims by the national courts. However, the lex posterior problem of EC law in the national legal order—the problem whereby the application of European obligations in the national legal order could be legislated away by subsequent contrary national legislation—has been addressed not by national courts' acceptance of Costa but by national courts' assumption that national legislatures do not intend to legislate contrary to prior European obligations, often developed from separately established national doctrines which assume legislative fidelity to treaty obligations. As such, the solution to the lex posterior problem of EC law in the national legal orders rests on these national legal doctrines combined with pervasive national legislative self‐restraint. Political self‐control in the Member States supports the European legal order.     

The legal landscape for advanced therapies: material and institutional implementation of European Union rules in France and the United Kingdom

In 2007, the European Union adopted a lex specialis, Regulation (EC) No. 1394/2007 on advanced therapy medicinal products (ATMPs), a new legal category of medical product in regenerative medicine. The regulation applies to ATMPs prepared industrially or manufactured by a method involving an industrial process. It also provides a hospital exemption, which means that medicinal products not regulated by EU law do not benefit from a harmonized regime across the European Union but have to respect national laws. This article describes the recent EU laws, and contrasts two national regimes, asking how France and the United Kingdom regulate ATMPs which do and do not fall under the scope of Regulation (EC) No. 1394/2007. What are the different legal categories and their enforceable regimes, and how does the evolution of these highly complex regimes interact with the material world of regenerative medicine and the regulatory bodies and socioeconomic actors participating in it?     

An international legal framework for data protection: Issues and prospects

The processing of personal data across national borders by both governments and the private sector has increased exponentially in recent years, as has the need for legal protections for personal data. This article examines calls for a global legal framework for data protection, and in particular suggestions that have been made in this regard by the International Law Commission and various national data protection authorities. It first examines the scope of a potential legal framework, and proceeds to analyze the status of data protection in international law. The article then considers the various options through which an international framework could be enacted, before drawing some conclusions about the form and scope such a framework could take, the institutions that could coordinate the work on it, and whether the time is ripe for a multinational convention on data protection.     

Public procurement as a means to achieving social gains – progress and challenges in European legislation and standards for accessible information and communication technology

This article explores the European Commission goal of improving the quality and level of accessibility in mainstream information and communication technology (ICT) goods and services available in Member States through the use of public procurement legislation and performance standards. Over the past two decades, the Commission has encouraged Member States to adopt common requirements for accessibility and to strengthen efforts to use these requirements in public procurement. In the absence of significant improvements in the level of accessibility over this time, the Commission has more recently committed to bringing forward legislative proposals to harmonize the accessibility requirements used by Member States. A new procurement directive package contains stronger obligations on public bodies to include accessibility as mandatory requirements in Technical Specifications. In parallel to this, a standardization mandate by the Commission to the European Standards Organizations (ESOs) concluded in March 2014 with the publication of the first European standard on ICT accessibility. In light of these developments, this article analyses the trajectory of European policy in the field of accessibility over the last two decades, and the interplay between European public procurement, standardization and law. It examines how far these developments have succeeded in bringing into being a public procurement eco-system that will nudge the market in Europe to producing affordable and accessible ICT products and services for persons with disabilities.