Is the Single European Market an Illusion? Obstacles to Reform of EU Takeover Regulation

Abstract Since 1989 the European Commission has attempted to harmonise rules governing EU takeovers as a crucial step towards the integration of Europe's capital markets. The article takes its starting point in the vote in the European Parliament in July 2001, which turned down a proposal for a Takeover Directive. Members of the European Parliament overwhelmingly voted according to national rather than party lines, which is unusual. The article develops an explanation for opposition to the directive, which emphasises differences between national systems of corporate governance. The outcome is asymmetric vulnerability, which means that the likelihood of a company becoming the target of an unwanted takeover bid differs depending on the nature of national incorporation. The article shows how national differences constituted obstacles to real reform within a context of arguments about how to create a level playing field.     

The European Biotech Directive: Past as Prologue

The directive on the legal protection of biotechnological inventions (the ‘Biotech Directive’) represents the end of a decade‐long dialogue on how best to encourage biotechnology innovation in Europe while addressing ethical concerns. The Biotech Directive represents an interesting compromise between Parliament, Commission, and Council based on divergent policy concerns, treaty limitations, and international trade rules. In this article, the authors explore the meaning and implication of the Biotech Directive by examining its contentious history, its provisions, and its jurisdictional foundations. Drawing on this base, the authors examine questions left unanswered by the Biotech Directive and analyse how the Biotech Directive fits in with existing international law.     

'We want you! But . . .' Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.     

Biotechnological invention patents: a legal-economic analysis]

Not without controversy, patents have traditionally been considered as elements which stimulate and protect inventive activity. In this article, we look at the economic advantages of a patent system and also at the possible critcisms. We then examine the application of patents in modern biotechnology. After concluding that current intellectual property laws do not come out clearly against the protection of biotechnology inventions, we then review the proposals for European Union regulation in the form of a directive which would clarify patenting possibilities.     

The European Agency for the Evaluation of Medicines and European Regulation of Pharmaceuticals

Abstract: The new European Agency for the Evaluation of Medicinal Products is the focus of the EC's new regulatory framework for approval of pharmaceuticals for human and veterinary use. This article considers past efforts at European pharmaceutical regulation, discusses the new 'centralised' and 'decentralised' procedures, and offers a functional analysis of the new system. It addresses European regulation of biotechnology, including Parliament's 1995 rejection of the proposed biotechnology directive using its codecision powers. It also reviews European case law and suggests that the Court of Justice's decision in Keck provides a useful way to analyse pharmaceuticals' place in the free movement of goods. While the new framework will likely improve approval of pharmaceuticals and over time lead to greater centralisation of the process, Member States will still retain some autonomy over the actual use of approved drugs, particularly through their continued control of conditions of reimbursement in national health systems.     

Non-governmental Organisation Participation in the EU Law-making Process: The Example of Social Non-governmental Organisations at the Commission, Parliament and Council

Abstract:  This article explores the avenues used by non-governmental organisations working in the sector of EU social policy to influence the law-making process at the EU. The Commission's current transparency initiative has focused attention on the rules (or lack of) governing access to the Commission as the initiator of legislation. This article examines more broadly, on the basis of interviews, both the formal and informal means of accessing not only the Commission, but also the European Parliament (in particular through intergroups) as well as the Council. By using specific examples of legislation it illustrates the routes by which 'social' non-governmental organisations currently interact with these institutions, offering examples of how their work may impact on the output of the Commission, Council and Parliament. The article avoids an overly legalistic analysis with an original glimpse at the 'hidden' workings of the EU law-making process which has hitherto received little attention among legal academics and practitioners.     

The European Parliament in Treaty Reform: Predefining IGCs through Interinstitutional Agreements

Abstract:  Despite the fact that Interinstitutional Agreements (IIAs) are an established part of the mass of informal and formal rules structuring EU decision-making and interinstitutional relations, there is as yet no common understanding of their role and functions in the institutional and legal system of the EU—neither in political science nor legal studies. Tracking the evolution of the European Parliament's competencies in three areas where IIAs figure prominently—comitology, legislative planning, and the establishment of procedures to hold the Commission accountable—this article seeks to show that the European Parliament strategically uses IIAs as instruments to wrest competencies from the Council and the Commission. Having no formal say in treaty reform, the European Parliament 'creates facts' through informal but politically binding IIAs hoping that, once established, it can achieve a later codification of its new rights at IGCs. Viewed this way, the analysis of the role of IIAs in Treaty Reform could help to explain a still under-researched puzzle in European integration theory, namely the incremental parliamentarisation of the institutional system of the EU over the last two decades.     

欧盟转基因生物安全法评析

欧盟对转基因生物安全的管理在世界上一直是最严格的,因其严格,也遭到美国等现代生物技术产品出口大国的质疑.对欧盟管理转基因生物安全的指令和条例进行介绍,对新旧法律进行比较,从中可以看出欧盟这方面法律的一个发展轨迹,并介绍了欧盟及其成员国对这些指令和条例的执行情况.此外,还介绍了著名的美国等国家诉欧共体的转基因生物措施案,并对案件进行了简单的评议,从中可以了解世界贸易组织的争端解决专家对欧盟有关转基因生物的措施的一些意见.     

The Norwegian Barents Sea Management Plan and the EC Marine Strategy Directive: Some Political and Legal Challenges with an Ecosystem-Based Approach to the Protection of the European Marine Environment

This article addresses some of the implications of the EU's proposed Marine Strategy Directive for ongoing work in the regional seas conventions and for national work on regional marine strategies. The starting point is the proposed directive's focus on the ecosystem approach to the protection of the marine environment. Key elements within this approach are analysed, such as integration of environmental considerations into other policy areas; introduction of ecological quality objectives; and establishment of holistic monitoring and assessment programmes. Is it possible to transform these concepts into legally binding obligations? What will the implications of the proposed directive be for the rights and obligations of EU Member States under international law? A Management Plan for the Norwegian Part of the Barents Sea ('Barents Plan') was adopted by the Norwegian Government in March 2006 and approved by the Norwegian Storting (Parliament) in June 2006. It provides an example of a concrete application of the concepts in the proposed directive. Based on an analysis of the proposed Marine Strategy Directive and the Barents Plan, some key political and legal challenges are discussed in this article.     

The Patients’ Rights Directive (2011/24/EU) – Providing (some) rights to EU residents seeking healthcare in other Member States

This article presents the main elements of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, commonly known as the Patient’s Rights Directive. It is the latest EU initiative with regard to European Health Care and the Single Market. The main elements of the Directive contain provisions related to the prior authorisation of health care in another Member State, the reimbursement of such health care and the removal of unjustified obstacles to achieving these aims.These provisions largely reflect the recent case law of the European Court of the Justice (ECJ). Amongst these are provisions involving the use of personal data. Such provisions will engage data protection issues and will have to be carried out according to the data protection directives. Alongside this primary aim of codifying ECJ case law the Patient’s Rights Directive also introduces novel initiatives aimed at fostering cross border cooperation between various elements of national healthcare systems.Part 1 of this contribution will describe the legal basis and the aims of the PRD, Part 2 will describe the principle obligations placed on the Member States with regard to reimbursement, Parts 3 and 4 will describe other informational and procedural requirements placed upon the Member States of Treatment and Affiliation. Finally Part 5 will outline some of the novel initiatives that have been included in the PRD.The increases in the frequency of cross border-treatment that this directive attempts to facilitate are likely to see a concurrent increase in cross-border patient information flows. Such data flows will be subject to the Union’s provisions on Data Protection. It remains uncertain whether the EU’s Data Protection regime will act as inhibitor to cross-border medical treatment or rather represent a gold standard that allows patients to engage in such activities with peace of mind. The Patient’s Rights Directive will form part of the EU’s future e-Health strategy which envisages a large increase in the fluidity of patient data. A discussion of this directive is therefore merited in this journal.     

The Bundling of Similar Interests in Litigation. The Incentives for Class Action and Legal Actions taken by Associations

The European directive 98/27/EC of 15 of May 1998 widens the scope of action for consumer interests. The new directive follows the green book on the rights of the consumer of 11 June 1993. The necessity to transform this directive into national law has led to discussions on whether it is advisable to generally expand the scope of liability for widespread damages. Should the possibilities to collect damages for consumer associations and to establish new forms of bundling similar interests in cases of civil liability be widened? This article deals with economic consequences of such forms of bundling with a focus on the class action and actions by associations. The American discussion on the merits of class action is not very encouraging and does not lead to proposing far reaching legal innovations for European countries in this field. It seems however that some of the adverse effects of class action can be avoided by slightly different forms of bundling.     

Constitutional Principle,the Rule of Law and Political Reality: The European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 is the cornerstone of UK legislation designed to accomplish the legal dimension of Brexit. It brings the entire acquis of EU law into UK law in order to avoid regulatory black holes that would otherwise occur. The Act embodies a twofold legislative strategy: EU law brought into UK law thereby is to be made fit for purpose by exit day, with necessary changes being made by statutory instrument; Parliament can then decide at greater leisure thereafter whether it wishes to retain, amend or repeal this legislation. The burden placed on Parliament is unprecedented, all the more so given the exigencies of time in which the changes are to be made. This article explicates the principal provisions of the 2018 Act, and the concerns as to constitutional principle and the rule of law raised by the legislation. The tensions in the drafting process are made apparent, and uncertainties in the resulting text are revealed.     

网络服务提供者的民事责任问题浅析--以欧盟电子商务指令中的相关规范为中心

随着计算机网络服务的日益发展,许多新的法律问题接踵而至,给我国现有法律体制提出挑战.其中一个十分迫切的问题就是,如何针对网络上发生的非法行为,合理地界定网络服务提供者的责任.这个问题不仅关系到这一新兴行业的生存与发展,而且也关系到对网络服务消费者及相关权利人权益的保护.为此,通过对欧洲有关国家及欧盟的有关立法规定的分析,归纳它们在关于网络服务提供者的民事责任规定上的若干特点,并阐明其对中国相关立法的借鉴意义.     

The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales

The tide in favour of legal equality for gay and lesbian individualsand couples continues to roll forward on both sides of the Atlantic.In Canada, the federal Parliament recently passed legislation(the Civil Marriage Act) (CMA) that extends the legal capacityto marry for civil purposes to same-sex couples throughout thecountry. This change in the law was driven not by the executiveand legislative branches of government but by the courts, interpretingand applying the Canadian Charter of Rights and Freedoms (theCharter). On the other side of the Atlantic, in England andWales, the Westminster Parliament in 2004 passed legislation(the Civil Partnership Act) (CPA) that will enable same-sexcouples to obtain legal recognition of their relationships,and to access most of the legal rights and responsibilitiesoffered to married couples. However, unlike the Canadian legislation,civil marriages between same-sex couples will still not be legallyrecognized. This article considers whether the English courtswill also facilitate the legal recognition of same-sex civilmarriage, like their Canadian counterparts. The author concludesthat, in light of recent case law, there is an increasinglystrong argument that the opposite-sex marriage requirement inEngland and Wales violates Article 14 (the equality provision)of the European Convention on Human Rights (ECHR), which isincorporated into UK law by the Human Rights Act, 1998. However,the author also concludes that there are a number of reasonsto be cautious that a positive result would flow, at this point,from a domestic court challenge to the opposite-sex marriagerequirement.     

Open access to public documents – More secrecy,less transparency!

Prospects are grim for greater access to public documents. The recent initiatives of the Council of Europe to enact a new international convention on access to public documents and recent proposal by the European Commission to revise the law on public access would actually narrow the right of access. The proposed laws would allow governments and the EU Commission to increase its discretionary power to control the flow of information. The draft CoE Convention sets an overly-low standard and restricts information held in electronic databases if the information is not “easily retrievable” or does not “logically belong together”. Similarly, the proposed amendments to the EU Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents would exclude access to documents that do not appear on a register. This would give the EU Commission a wide discretion to share documents informally with a limited number of people, such as interest groups. The Commission's proposal would relieve the EU institutions of its current obligation to show concretely the harm that would occur as a result of disclosure when refusing access to documents. The new proposal has been criticised for subordinating transparency rules to data legislation. The proposals initiated under the Swedish leadership would be a step backwards for transparency.     

Beyond Technocratic Governance: The Case of Biotechnology

Decision-making processes within the European Union are often held to be technocratic in nature. This article challenges this assumption upon conceptual and empirical grounds. Whilst in the European regulatory field of biotechnology, politicians often seek to define political issues as technical questions and so may successfully evade necessary but time-consuming legislative processes through the means of Comitology; the diverse mixture of national, supranational, technocratic and political interests within the Commission, Council, Parliament and committees, determines that social and ethical criteria do play a role in European regulation. Relating such specific findings to the broader question of European governance, it might thus be argued that the European Union is more than a technocratic regime, and does more than promote negative integration. However, the 'political' within European decision-making needs nonetheless to be strengthened to ensure the necessary and continued inclusion within such regulatory processes of social and ethical rationalities to complement the economic rationality of the internal market.     

The Cocoon of Power: Democratic Implications of Interinstitutional Agreements

Abstract:  This article assesses Interinstitutional Agreements (IIAs) in terms of democratic theory. It starts from the premise that democratic rules as developed in the national context may be used as a yardstick for supranational governance as well. Thus, parliamentarisation of the Union is defined as an increase in democracy, although relating problems such as weak European party systems, low turnouts, and remoteness are not to be neglected. The article evaluates several case studies on IIAs in this vein and asks whether they strengthen the European Parliament or not, and why. It arrives at conclusions that allow for differentiation: empowerment of the European Parliament occurs in particular when authorisation to conclude an IIA stems from the Treaty or from the power that the European Parliament has in crucial fields such as the budget and is willing to use for this purpose. Success is, however, not guaranteed in every case, and is sometimes more symbolic than real. However, a democratic critique must also stress negative consequences of IIAs in terms of responsivity, accountability, and transparency.     

Vital parameters for patent morality a question of form

Legal context: At the interface between patent law and biotechnology, a debatehas arisen over the application of the morality provision, designedto ensure the future development of society on a principledbasis. This article reviews the provision in its European context,adopting UK and European perspectives for analysis. Key points: Analysis of the provision identifies that there is ambiguityregarding interpretation of the morality provision, which haslead to inconsistent application between the European PatentOffice and the European Patent Boards. This article assessesthe provision in the context of the patent system and offersa legal philosophy framework within which to understand theprovision as conveying: a methodology, a standard of moralityand a source for that standard which can be utilized to describethe possibilities. It then re-centres the debate to its practicalcontext in order to demonstrate that the patent system removesthe options which are inapplicable: advocating valid and achievablemethods for complying with the law both nationally and on aEuropean level. Practical significance: The morality provision has become an accepted ‘wild card’in assessing the patentability of biotechnology: it has cometo rely upon the identification of danger areas in innovationthat may trigger moral objections. This falls far short of thelegal certainty which is so vital to biotechnological growth.In the face of the impending implementation of the unitary patentright across Europe, the importance of achieving a predictableand practical approach to applying the morality cannot be underestimated.     

The power of legislative hot air: Informal rules and the enlargement debate in the European parliament

Integration theorists disagree over the extent to which the European Parliament can substantially influence policy‐making processes in the absence of formal agenda‐setting power. This article discusses the impact the European Parliament had on the current enlargement negotiations. Although the legislature does not yet possess the means to alter the stance of the European Council, it has tried to reverse the status quo through the use of its informal bargaining power. We argue based on a principal‐agent framework of analysis that the effectiveness of this strategy is largely a consequence of the ability to speak with one voice. The article evaluates various mechanisms to help the European Parliament build a unified position. It refutes socialisation and specialisation theories, showing that party group pressure towards a unified position overrode national concerns and constituted a necessary precondition in the development of an integrationist attitude. A statistical analysis of the pre‐bargaining positions inside the Foreign Affairs and Security Committee largely confirms the insights from qualitative interviews with participants and observers.     

The President’s power to withhold assent to Bills of Parliament

In terms of Article 64 of the Namibian Constitution, the President may withhold his or her assent to a Bill passed by Parliament on constitutional grounds, and may refer such Bill to a competent court for a decision. The strength of Article 64 is rooted in the fact that legislative proposal, which is not yet law, can be challenged for constitutionality. The power of the President is comparable with systems in South Africa, Ireland and India. This article examines the extent to which the executive, represented by the President, acts as a constitutional check on the legislative, represented by Parliament.