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 European Union and Penal Law

Technically-speaking, penal law remains outside the competence of the European Communities and Union. However, mirroring other legal developments within Europe, a combination of higher Community 'principles' such as proportionality, non-discrimination, free competition and loyal co-operation, together with secondary Community law, has on the one hand, led to an unforeseen process of the harmonisation of national penal systems; with national norms either being set aside by Community law, or given extended scope in the pursuance of EC/EU goals. On the other hand, certain European interests – most notably, the need to safeguard the European Union budget – have proven strong enough to prompt the evolution of a nascent penal law of the EU; the most noteworthy development here being the drawing up of an independent European 'corpus juris' covering penal policy and procedure in the area of EU budget protection.     

European Union Constitution-Making, Political Identity and Central European Reflections

Abstract: This article focuses on the European Union's constitution‐making efforts and their specific reflections in the Central European accession states. It analyses both the temporal and spatial dimensions of constitution‐making and addresses the problems of political identity related to ethnic divisions and civic demos. It starts by summarising the major arguments supporting the Union's constitution‐making project and emphasises the Union's symbolic power as a polity built on the principles of civil society and parliamentary democracy. The EU's official rejection of ethnically based political identity played an important symbolic role in post‐Communist constitutional and legal transformations in Central Europe in the 1990s. In the following part, the text analyses the temporal dimension of the EU's identity‐building and constitution‐making and emphasises its profoundly future‐oriented structure. The concept of identity as the ‘future in process’ is the only option of how to deal with the absence of the European demos. Furthermore, it initiates the politically much‐needed constitution‐making process. The following spatial analysis of this process emphasises positive aspects of the horizontal model of constitution‐making, its elements in the Convention's deliberation and their positive effect on the Central European accession states. The article concludes by understanding the emerging European identity as a multi‐level identity of civil political virtues surrounded by old loyalties and traditions, which supports the conversational model of liberal democratic politics, reflects the continent's heterogeneity and leads to the beneficial combination of universal principles and political realism.     

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.     

An American Looks at the European Union

Abstract: Anyone who has followed the evolution of six European nations from a simple Coal and Steel Community to the current twenty‐five Member State European Union (EU), has witnessed a truly remarkable passage. Nonetheless, the EU remains a decidedly jerrybuilt affair. Through numerous enlargements, increased competences, changes in structure and operation, the Union has been bedevilled by the fact that it is neither a simple international treaty with 25 signatories, nor a truly federal union. Rather, the EU has operated, sometimes effectively, often shakily, between these two extremes; exhibiting a sort of ‘fear of federalism’. From a US perspective, this article looks at the present state of the European Union and asks why it has met its potential in some ways, but has fallen so far short in others. Obviously, the tension between the Member States and the Community institutions is one reason. The article asks why do the states compete so much with one another, when their true competition is often with non‐European entities? Why does the European Council never seem to act in a timely manner? Why do euro‐citizens have so poor of an appreciation of what the Community does for them? Why does the Common Agricultural Policy, which contributes such a small amount to European gross domestic product, so dominate the EU budget and agenda? Can the euro, clearly the world's second currency after the US dollar, ever win over its doubters and harmonise European financial service markets? Does enlargement improve or threaten the future of the Community? And can its Common Foreign and Security Policy ever be successful if it is forced to compete with parallel politics in the Member States? All of these questions are addressed in this article with the hope that, through an external critique, the EU will live up to its potential both at home and abroad.     

European Union Citizenship: Writing the Future

Abstract:  EU citizenship has matured as an institution, owing to a number of important interventions by the European Court of Justice and legislative initiatives, such as the Citizenship Directive 2004/38/EC, which has recently entered into force. In this article, I critically examine minimalist and cosmopolitan conceptions of European citizenship and argue that once we dispense with the preoccupation of assigning primacy to a specific level of citizenship and establishing some kind of hierarchy among them, we can begin to address the questions and issues that really matter. Among these are the future governance of citizenship and the design of a more inclusive, multilayered and multicultural conception of citizenship. European citizenship entails a number of fruitful ideas for a more ambitious transition to a post-national tableau and can be the prototype for institutional experimentation on citizenship on a global scale.     

Abolishing Exequatur in the European Union: The European Enforcement Order

Netherlands International Law Review -     

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。     

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]