From vocational training to education: the development of a no‐frontiers education policy for Europe?

This article focuses on developments towards an EU educational policy. Education was not included as one of the Community competencies in the Treaty of Rome. The first half of the article analyses the way that the European Court of Justice and the Commission of the European Communities between them managed to develop a series of substantial Community programmes out of Article 128 on vocational training. The second half of the article discusses educational developments in the community following the Treaty on European Union and the Treaty of Amsterdam. Whilst the legal competence of the community now includes education, the author's argument is that the inclusion of an educational competence will not result in further developments to mirror those in the years before the Treaty on European Union. If the 1980s were a decade of expansion, the medium‐term future is likely to be one of consolidation.     

The Fight Against Organised Crime in Europe: A Comparative Perspective

This article provides an overview of the measures and actions taken by the Member States of the European Union in their fight against organised crime and transborder crime. The Action Plan to Combat Organized Crime adopted by the Ministers for Justice and Home Affairs during the Dutch EU Presidency, submitted some 30 recommendations with respect to greater harmonisation regarding the fight against organised crime in the EU Member States. The author gives a concise summary of the most relevant changes and the structural characteristics per Member State, paying attention to developments in the specific countries and the organisations involved. One of the conclusions reached is that few or no reforms within national investigative and prosecution authorities may be directly traced back to the regulatory impulses of the EU. Although the EU Action Plan has not yet realised a convergence of the systems, the European process of integration has increased the mutual transparency and knowledge of one another's systems.     

The European Community and the Member States in the Dispute Settlement Understanding of the WTO: United or Divided?

Opinion 1/94 of the European Court of Justice determined the competence of the European Community and the Member States to conclude and implement WTO Agreements. Whilst the European Community enjoys exclusive competence to implement the Multilateral Agreements on Trade in Goods, it shares joint competence with the Member States in respect of the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights. However, the Court’s recognition of a division of competences between the Community and the Member States in WTO agreements has given rise to many fears that such a division would greatly complicate Community and Member State participation in WTO Agreements, would create many problems for them in doing so and, as a result, would greatly impede their successful participation in the WTO. Given the benefit of a number of years’ experience in the WTO, this paper focuses on the Dispute Settlement Understanding (DSU) of the WTO and addresses the extent to which the division of competences between the Community and the Member States has affected their participation in the DSU. Primarily, it aims to examine the extent to which the provisions of the DSU affect Community and Member State participation in dispute settlement within the WTO. It then analyses the duty of co-operation imposed on the Community and on Member States by the Court of Justice in Opinion 1/94 in the implementation of the WTO Agreements and the degree to which this duty influences their pursuit of dispute settlement. Finally, the paper examines the manner in which Community and Member State dispute settlement proceedings have evolved in practice, the extent to which the division of powers has penetrated dispute settlement proceedings and the manner in which the Community, the Member States and other WTO members have addressed it. In essence, the paper attempts both to highlight some of the more obvious consequences and effects that the internal division of powers between the Community and the Member States has for their participation in the DSU and to suggest some ways in which these consequences may be manipulated for their mutual and successful settlement of disputes.     

Energy Security and the Division of Competences between the European Community and its Member States

Abstract: Securing energy supply for Europe has been for decades at the forefront of the energy policies of individual European Community member countries. However, dealing with energy issues in general and securing energy supply in particular is a new phenomenon within the EU's regulatory framework. One important issue which has not yet been discussed by legal scholars and which has been questioned repeatedly by energy experts, is the question who is actually responsible to guarantee security of energy supply in Europe? Is it the European Community alone? Is it the Member States alone? Or is it both? This question cannot be answered without a detailed legal analysis of the EU law in general, and EU law on division of competences between the Community and the Member States in particular. This article seeks to highlight the complications of this area of law within the EU and expand it to cover the energy sector in order to determine who and under what circumstances is responsible for guaranteeing security of energy supply for the consumers within the EU borders.     

Article 345 TFEU (ex Article 295 EC), Its Meanings and Interpretations

Research that has been conducted over the last decades shows that neither the scope of application nor the exact meaning of Article 345 TFEU (ex Article 295 EC) is clear from its wording. This article seeks to clarify its meaning through analysis of the drafting of the Article as well as the use of it by the EU's institutions and by the Member States. Article 345 TFEU, formerly Article 295 EC and, before that, Article 222 EEC, is an Article that limits, but not prevents, the application of the TFEU Treaty as a whole to the way in which rules of a Member State deal with the right of ownership of undertakings. The conclusion can be drawn that Article 345 TFEU only concerns the private or public ownership of undertakings, with which the Community shall not concern itself and which can thus be regulated by the Member States themselves. Most importantly, the Article does not concern the content of the right of ownership, nor the objects of a right of ownership. It does therefore not form an obstacle to the development of a European property law.     

Reflexive Governance and European Company Law

The use of reflexive forms of governance is growing within the EU, in particular as the open method of coordination (OMC) is applied to a wider range of contexts. Reflexive approaches view diversity of laws and practices across the Member States as the basis for experimentation and mutual learning within the overall process of European integration. Company law, however, seems to be an exception to this trend: recent activity in this area has mostly taken the form of 'hard law' harmonisation through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice concerning freedom of movement, most notably the Centro s case. The deliberations of the European Corporate Governance Forum barely qualify as a 'company law OMC' because of the limited space allowed for 'learning from diversity'; instead, differences in the laws of the Member States are seen, in the discourse of the Forum, as 'distortions of competition'. In the area of labour law, by contrast, a degree of functional convergence and a coordinated raising of standards have recently been achieved by the dovetailing of the OMC with social policy directives. The contrasting experiences of labour law and company law suggest that reflexive or experimentalist approaches to European governance can be effective when they operate so as to complement mechanisms of harmonisation and regulatory competition, rather than being presented as alternatives to them.     

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.     

The Bologna Process: From a European Law Perspective

The Bologna Process, an intergovernmental process of voluntary policy convergence towards a common higher education structure, poses several concerns from a European law perspective. The Bologna Process takes place outside the institutional framework of the EU, while there would have been legal competence to enact the content of the Bologna Declaration as a Community measure. Hence it could be argued that Member States have straddled the borders of loyal cooperation by avoiding the institutional framework of the EC with its built‐in checks and balances. They have obstructed the Community in the attainment of its tasks, which stands in tense relation to Article 10 EC. Moreover, there exist several other objections against the Bologna Process, particularly in terms of democracy, transparency and efficiency. The Bologna Process resembles a deal done in a smoke‐filled room, and its voluntary character combined with a lack of coordination prevents its effective implementation.     

欧盟商标法律制度的协调机制及其对我国的启示

在欧盟,既有各成员国国内的商标法律制度,又有欧盟的跨国商标法律制度即共同体商标条例,并设有将这两种商标法律制度协调运行的机制。该机制的核心主要有三个方面：一是优先注册权制度,即在一成员国有效的商标,或者同时又是共同体商标,权利人可以享有将同一商标在相同商品或服务上优先注册共同体商标的权利,或者优先注册其他成员国国内商标的权利;二是转换申请制度,即共同体商标的申请人或所有人在其申请失败或其商标失效时请求将该申请或商标转换成国内商标申请的情况;三是共同体商标特有的诉讼管辖和法律适用制度。欧盟所建立的这种复式商标法律制度及其协调机制,对于“一国两制”下的中国大陆、香港、澳门和台湾四法域商标法律制度的协调具有重要的借鉴作用。     

Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a Comparative Perspective

Abstract:  The European Union aims to develop a European criminal justice to combat cross-border crimes of smuggling of migrants and trafficking in human beings. This article focuses its attention on European Community/European Union (EC/EU) law and on two Member States, Italy and the United Kingdom (UK). The findings show that there are diversities and ambiguities in the definition of irregular migration. On the contrary, the EU and Member States should concentrate their efforts on the two crimes of smuggling of migrants and trafficking in human beings rather than criminalising irregular migration.     

Preserving the Identity Crisis: Autonomy,System and Sovereignty in European Law

This article uses Hans Kelsen's theory of a legalsystem to take a fresh look at European Community law,and the relationship between the European Community,its Member States, and international law. It arguesthat the basis of the Community's legal legitimacy isindeterminate, and offers a model to accommodate thatindeterminacy. This model is founded on aconstructivist approach suggested to be particularlyuseful in the EC context. Using this approach, it isargued that the concepts of system, autonomy andsovereignty in the Community can only be understoodthrough the recognition of a plurality of viewpoints,and that it is crucial, in describing the Community,to distinguish between a concept per se and thechoice to adopt that concept.     

The Constitution of a European Democracy and the Role of the Nation State

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro-democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community.     

The Many Meanings of Equality and Positive Action in Favour of Women under European Community Law - A Conceptual Analysis

Abstract: The principle of equality of men and women as understood by Community institutions covers four distinguishable aspects. The first is equal treatment, defined in Community texts as the absence of legal gender discrimination. This concept focuses on individual rights and does not take into account the social context in which rules function. Second, the Community seeks to realise equal opportunities, understood as factual equality of chances. Third, Community law displays a concern for factually equal outcomes. The institutions accept legally different treatment that seeks to equalise unequal living conditions and inversely admit that facially neutral rules can have discriminatory effects. Finally, various documents conceive of gender equality as equal representation of the sexes in professional and public life. In the Kalanke decision of October 1995, the Court for the first time dealt with quotas in favour of women. It held that a national provision granting female candidates an automatic preference is incompatible with the right to equal treatment. The Court failed to acknowledge the tensions that arise from the coexistence of paradigms. An awareness of the multiplicity of concepts of equality, exhibited in Community law and rooted in the common constitutional heritage of the Member States, is however a prerequisite for a more sophisticated discussion of the issue of positive action.     

The European Charter of Fundamental Rights A Changed Political Opportunity Structure and its Normative Consequences

The European Community is about to enlarge its de facto constitution by a fundamental rights charter. It is intended to become legally binding, at least in the long run. If it is, it will profoundly change the political opportunity structure between the Community and its Member States, among the Member States, among the organs of the Community and in relation to outside political actors. When assessing the new opportunities, one has to keep in mind the weak democratic legitimation of European policy making and its multi‐level character. The article sketches the foreseeable effects and draws consequences from these insights for the dogmatics of the new fundamental rights, their relation to (other) primary Community law and to other fundamental rights codes. It ends with a view to open flanks that cannot be closed by the dogmatics of the freedoms themselves, but call for an appropriate design of the institutional framework.     

An inquiry into the legal status of the ECOWAS cybercrime directive and the implications of its obligations for member states

On 19 August 2011, the ECOWAS Council of Ministers adopted Directive C/DIR.1/08/11 on Fighting Cybercrime at its Sixty Sixth Ordinary Session in Abuja, Nigeria. The adoption of the Directive at that time arose from the need to tackle the growing trend in cybercrime within the ECOWAS region, as some Member States were already gaining global notoriety as major sources of email scams and Internet fraud. Accordingly, the Directive established a legal framework for the control of cybercrime within the ECOWAS region, and also imposed obligations on Member States to establish the necessary legislative, regulatory and administrative measures to tackle cybercrime. In particular, the Directive required Member States to implement those obligations “not later than 1st January, 2014″. This article undertakes an inquiry into the legal status of the Directive as an ECOWAS regional instrument in the domestic legal systems of Member States.In this regard, the article examines whether the requirement regarding the superiority or direct applicability of ECOWAS Community laws such as ECOWAS Acts and Regulations in the domestic legal systems of Member States also apply to ECOWAS Directives such as the Cybercrime Directive. The article also examines the legal implications of the Directive's obligations for Member States. The article argues that while some Member States have not implemented the obligations under the Directive, that those obligations however provide a legal basis for holding Member States accountable, where the failure to implement has encouraged the perpetration of cybercrime that infringed fundamental rights guaranteed under human right instruments such as the African Charter on Human and Peoples’ Rights or under their national laws.     

Resolving Incompatibilities of Bilateral Investment Treaties of the EU Member States with the EC Treaty: Individual and Collective Options

Bilateral Investment Treaties (BITs) concluded by the EU Member States contain substantially similar clauses, including free movement of capital and investor‐to‐state dispute resolution. Article 307 EC provides for the primacy of pre‐accession treaties over the EC Treaty and simultaneously requires the Member States to eliminate their mutual incompatibilities. The European Court of Justice has declared that free movement of capital clauses of Austrian and Swedish pre‐accession extra‐EU BITs are incompatible with the EC Treaty as they will impede any restrictions on the movement of capital imposed as future Community legislation. A similar ‘free movement of capital’ clause is present in all extra‐EU BITs of the Member States, whether pre‐ or post‐accession. Article 307, however, does not apply to the post‐accession treaties which are equally capable of contriving the same consequences of impeding the application of the EC Treaty. In addition, the application of intra‐EU BITs provides investors from BIT party states access to the investor‐to‐state dispute resolution which is not available to investors from the Member States who do not have BITs with those Member States. This is discrimination and may distort the principle of equal treatment within the EU. Furthermore, the newly acceding EU States are facing extensive arbitral claims for carrying out the BIT‐EU conflicting obligations within their respective territories.     

Private Law and Public Stakes in European Integration: the Case of Property

Abstract:  In European legal discourse, the old public/private divide is experiencing a revival and a transformation. Member States used to claim autonomy in private law matters. Now private law is subsumed into a functionalist logic and can presumptively be harmonised if so demanded by the goal of market integration. States or local constituencies can only resist harmonisation by highlighting the connection between their private laws and those 'public' matters still immune from Europeanisation. Property law can effectively illustrate this phenomenon. The written pledge of non-interference with States' property systems, restated both in the TEC and in the draft Constitution, cannot be taken at face value, given the plethora of supra-national inroads into this field. But it performs the essential rhetorical function of reassuring national law makers that Europe will pay special attention to sovereign choices when harmonising those areas of private law which, like property, harbour an obvious core of constitutional values.     

Health and Efficiency: Community Law and National Health Systems in the Light of Müller-Fauré

In Müller-Fauré the Court of Justice has made clear that restricting patients to receiving medical services from their domestic health systems is often contrary to EC Treaty rules on the free movement of services, particularly where the treatment is not in-patient. The patient should generally be able to go abroad for treatment at the expense of their national health authority. This has structural and financial repercussions for health care systems in several Member States, including the United Kingdom, whose systems are premised upon captive patients. It also has broader implications for welfare harmonisation and provision in the European Union. Exceptions are possible, where the implications for the national health system would be very serious, but Müller-Fauré indicates that the Court will not allow national courts or authorities to rely on these too freely.     

Rethinking Product Liability: A Missing Element in the European Commission's Third Review of the European Product Liability Directive

The paper uses the opportunity afforded by the European Commission's Third Report of the Product Liability Directive to assess the present state of product liability in Europe. It notes that despite the maximal harmonisation character of the Directive there is a risk of divergence between Member States on key issues including the core concept of defectiveness. The Commission seems at times confused (for example, as regards the relationship between defect and fault liability) and more often complacent about the risks of divergence; but this sits uneasily with the espousal of maximal harmonisation. Ultimately there may be a need for a rethinking of product liability to ensure greater clarity as regards the underlying rationale supporting strict liability. This seems unlikely to materialise in the near future and so at the very least the Commission should act to clarify some core concepts that are proving difficult to interpret for the courts.     

EU Accession to the ECHR: Between Autonomy and Adaptation

After the European Union's accession to the European Convention on Human Rights the EU will become subject to legally binding judicial decisions of the European Court of Human Rights (ECtHR) and participate in statutory bodies of the Council of Europe (Parliamentary Assembly; Committee of Ministers) when they act under the Convention. Convention rights and their interpretation by the ECtHR will be directly enforceable against the EU institutions and against Member States when acting within the scope of EU law. This will vest the ECHR with additional force in a number of Member States, including Germany and the UK. All Member States will further be subject to additional constraints when acting under the Convention system. The article considers the reasons for, and consequences of the EU's primus inter pares position under the Convention and within the Council of Europe, and the likely practical effect of the EU's accession for its Member States.