Legal Pluralism and the European Union

Abstract:  This article advances a pluralist model of a legal system. It claims that a legal system is pluralist when it contains inconsistent rules of recognition that cannot be legally resolved from within the system. The first part of the article sets out the model, demonstrating why it requires a departure from the classical accounts of law advanced by writers such as Hart and Kelsen. The second half applies this model to actual legal orders: first, to Rhodesia during the crisis of 1965, and then to the legal orders of the European Union. It is argued that there are interesting and important points of similarity between the two.     

The Trade Union Movement and the European Union: Judgment Day

Abstract: The trade union movement faces a challenge to the legality of transnational collective action as violating economic freedoms in the EC Treaty. How are disparities in wages and working conditions among the Member States to be accommodated? Are national social models protected? Does the internal market allow for trade union collective action? How does EU law affect the balance of economic power in a transnational economy? What is the role of courts in resolving economic conflicts? This article analyses the responses to these questions as referred to the European Court of Justice by the English Court of Appeal and offers some conclusions. The purpose is to highlight the different positions adopted by the old Member States and the new accession Member States as regards the underlying substantive issues, and the options available to the Court of Justice in answering the questions posed.     

The Telecommunications Law of the European Union

Abstract: This article is intended to give an overview of the law as it stands on telecommunications at the Community level. Over the past ten years the telecommunications law and policy of the European Community have developed rapidly along the twin axes of liberalisation (deregulation) and harmonisation (reregulation). The innovative use of Article 90 EEC has been central to liberalisation, while most harmonisation legislation has been based on open network provision (ONP) passed under Article 100a. The article concludes that, now the national monopolies have been largely dismantled, new issues will arise in the competitive market.     

论欧盟区域内的强制性规则

由于欧盟尚无统一的欧洲合同法,各成员国合同法中的强制性条款的差异成为欧洲共同市场一体化进程的阻碍之一,因此研究欧盟区域内冲突法意义上的强制性规则十分必要。基于现在欧盟无冲突法意义上关于强制性规则的立法,笔者试图依据欧盟成员国缔结并适用的罗马公约从冲突法的角度解释不同类型的强制性规则,分析它们的不同之处,并比较具代表性的欧盟成员国的强制性规则,同时讨论欧盟这一层面的现行规定及发展。     

Another Look at Constitutional Pluralism in the European Union

Constitutional pluralism is a theory, or movement, or idea, for some perhaps even an ideal, about the relationship between the legal system of the European Union and those of its Member States. In this paper, Julio Baquero Cruz analyses its assumptions and implications in the light of historical experience and of the consequences it could have for the practice of law in Europe. To do so, constitutional pluralism is compared with the other main positions about that relationship: the national constitutional position and the position of Union law.     

An Analysis of Institutional Change in the European Union

Institutional change is guided by rules. In the European Union these rules are given by Art. 250–252 of the Treaty of Amsterdam. We analyze these articles as games in extensive form and characterize and compare the equilibria of these games. The analysis identifies the decisive actors and the conditions under which it comes to institutional changes in the European Union. In addition we analyze the tendencies for centralization inherent in these decision procedures as well as their ability to guarantee conflict-minimizing compromises between the institutional actors. We show that the historical evolution from Art. 250 over Art. 252 to Art. 251 implies an improved position of the European Parliament. Contrary to part of the literature we show that the move from Art. 250 to Art. 252 may have important consequences for the policies to be implemented and that the move from Art. 252 to Art. 251 improved the position of the European Parliament. Hence, our model is able to resolve the empirical anomalies resulting in conditional-agenda setting model by Tsebelis and therefore points to the importance of the sequential structure of the decision procedures.     

Education cooperation in the European Union at the threshold of the New Millenium

The principles of ‘double relevance’ and ‘user-friendliness’ are seen as being essential for the implementation of the EU education programmes SOCRATES II and LEONARDO da VINCI II. Against the background of the acquis in EU education cooperation two points are explored: a) the articles of the Treaty are not fully used, and b) the framework set is increasingly proving to be too restrictive. The Luxemburg process and the Bologna conference are the reason for the second point. The opinion is put forward that the exchanges of students and teachers and the information exchange can be further europeanized and, eventually, be organized in permanent European structures. This revised version was published online in July 2006 with corrections to the Cover Date.     

欧洲一体化与欧盟制宪:一种宪法学的解读

作为世界上最成功的目标和价值共同体 ,欧盟制宪既是欧洲一体化进展的必然结果 ,也是欧洲一体化深化和扩大的现实需要。用宪法学的理论分析欧盟制宪的动因、宪政基础 ,有利于从理论上解决欧洲宪法制定过程中可能产生的问题 ,也有利于向世界范围扩展宪政理念。     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

Anti-Discrimination Law and the European Union

Netherlands International Law Review -     

Legal Cultures in the European Union

The introductory part of the essay deals with the notion of legal culture and its categories. Later, the author sets forth the characteristics of the common law and the Roman- German legal cultures, including the legal families within them. He also touches upon the tendencies of the development of the German legal and political culture. With respect to the integration of the legal systems into the EU, the author argues as an advocate of convergence. Both basic legal cultures are being modified as, besides statutory law, judicial law becomes significant in the continental legal systems and statutory law complements case law in the common law systems. As to the integration of the Hungarian legal culture into the EU, the essay points to two principal considerations. On the one hand, when working on making our legal culture "euro-conform", we must not forget about maintaining our own legal culture. On the other hand, the Hungarian legal culture can contribute to the development of the legal system of the EU, e. g. with some of the regulations of our statute on the ethnic minorities. At the end, the author shows that the efficacy of the European law is heavily dependant upon the national legal systems.     

欧盟法对企业合并的规制

企业合并是当今各国优化产业结构和企业组织结构的重要手段,也是企业迅速扩张、提高规模经济效益和国际竞争力的有效手段.然而,经济力量的集中和由此导致的市场结构的改变,容易产生或加强市场支配力量,从而起到排除或限制竞争的作用.为了防止企业通过并购实现或加强市场支配地位,维护市场上的竞争秩序,对一定规模以上的企业并购交易进行反垄断审查,已成为市场经济国家设计和实施反垄断法的通行做法.目前,已有七十多个国家建立了企业并购控制机制.其中十分引人注目的是,欧盟于上世纪90年代初建立了企业合并控制机制,并于2004年进行了改革.到目前为止,欧盟竞争总司作出的并购审查决定已达两千多件,在此过程中积累了丰富的经验.拟对欧盟企业合并控制制度的建立、理论、程序及实体规则进行研究,并就中国企业合并控制制度的现状及发展提出自己的看法.     

Emissions trading in the European Union

The first 150 words of the full text of this article appear below. Key points

• The EU ETS will undergo a number of changes consequentupon the commencement of the first Kyoto Commitment Period on1 January 2008.
• This article considers the existing EU ETSframework and also the key developments that are anticipatedin the European emissions market for 2008–2012.
• A secondarymarket for trading EUAs has already developed and this market,together with the standard-form documentation used, is discussed.
• Inconclusion, the article questions the future of emissions tradingin Europe—particularly after the current Kyoto targetsexpire in 2012.

  European businesses entered a carbon-constrained economic environmenton 1 January 2005. For some, the impacts were immediate anddirect in the form of caps on their emissions. The majorityfelt it indirectly and more slowly through increased energycosts as the perceived cost of compliance was passed on by generators.The full impacts are not yet clear, but a quiet revolution is. . . [Full Text of this Article]