Europe in Search of its Civil Society

Building upon the experience of the Convention for the elaboration of the Charter of fundamental rights and upon the suggestions of the White Paper on European Governance, this article puts forward proposals for a better involvement of the 'civil society' in the system of the European Union. It offers a general diagnosis of the misunderstandings surrounding the notion of 'civil society' and the relationship of representative democracy to participatory democracy. It then draws some lessons from the experiment in deliberative democracy which led to the drafting of the Charter of fundamental rights. Finally, it focuses on the contribution the organisations of the civil society can make to good governance in the European Union. Altogether, the proposals presented tend to encourage a better structuration of the actors of the civil society. Such a structuration, the article concludes, although it is usually considered with suspicion even by those whom it would most benefit, must be seen instead as a condition for the effective exercise of whichever participatory rights might be granted to the organisations of the civil society.     

Legal Education,Institutional Skills and European Union Opinions

A cluster of issues in the context of legaleducation shows the importance of legalsemiotics: new forms of citizenship, new ideas on e-education, the recent design ofe-educational programs that focus the featuresof institutional life, the concept of a`learning society' are this cluster's elements.Opinions of European Union Institutions stimulate to conceive modern society in thelight of these issues. It leads to theformulation of a fifth freedom in the Union,(after freedom of persons and goods, servicesand capital) which is the freedom toparticipate in a ``learning society'. Thepractice of that freedom leads to developinge-educational programs for institutionalskills.     

European Civil Society: Shaped by Discourses and Institutional Interests

Abstract: During recent years, the concept of European civil society has gained increasing popularity. The European Institutions themselves have developed a discourse on civil society and civil dialogue. Institutional interests have shaped this discourse. Reframing the normative context for EU democracy, this discourse suits some institutions better than others. In particular, the European Economic and Social Committee and the European Commission have made recourse to it; the former to redefine its proper role and combat the risk of marginalisation within the European institutional set‐up; the latter first to build support for policy initiatives in the social sphere and subsequently to respond to the legitimacy crisis of the Brussels’ bureaucracy. These institutional interests have inspired a conceptualisation of civil society as ‘functional participation’ and ‘functional representation’ rather than as ‘politicisation’ or ‘decentralisation’. However, while the Commission and the ESC have had some success in selling their discourse, to be successful in the longer run some problematic assumptions of the discourse should be tackled and both the different rationales for civil society involvement as well as the multi‐level character of European civil society and European policymaking should be taken into account.     

Au nom de qui? The European Court of Justice between Member States,Civil Society and Union Citizens

Abstract: How does the quest for legitimacy of the European Union relate to the view the European Court of Justice(ECJ) accords to Union citizens, civil society and to private actors? It is submitted that the ECJ is currently developing a jurisprudence under which citizens, as well as their organisations and corporate private actors, are gradually, and in almost complete disregard of the public/private distinction, being included in the matrix of rights and—a crucial point—obligations of the treaties. The ECJ incorporates civil society actors and citizens, beyond notions of representative (citizenship) and participatory (civil society) democracy, into the body of law and thereby reworks its own and the Union's identity. Two core aspects are explored: the first is the reconfiguration of Union citizenship as a norm which triggers the application of the substantive norms of the EC Treaty. The second aspect of this evolution is the creation of ‘private governance’ schemes, i.e. processes in which, as a rule, private action is regarded as action that has to meet the standards of the Treaty. The analysis shows that the court is disentangling itself from the State‐oriented Treaty situation and drawing legitimacy directly from citizens themselves so that judgments should be pronounced ‘In the Name of the Citizens of the European Union’.

1 European Court of Justice 20 September 2001, Case C‐184/99, Grzelczyk [2001] ECR I‐6193, para. 31.

     

Telecommunications terminal equipment: EEC commission opens the market

The 12 Member States of the European Economic Community (EEC) are legally obliged by the Treaty of Rome, as amended by the Single European Act, to abolish all of the remaining physical, technical and fiscal barriers between them by 31 December 1992. The Single European Act, which sets the 1992 deadline, defines the envisaged internal market as “an area without internal frontiers”.The creation of a common European market for telecommunications services and equipment is both an essential prerequisite and an important part of the “internal market”.In its Green Paper on the Development of the Common Market for Telecommunications Services and Equipment — “the Green Paper”¹⁾) — and a follow-up Communication²⁾, the Commission of the European Communities (“the Commission”) has set forth its main policy proposals in the telecommunications field. Implementation of these policy proposals by means of Community law directives is progressing rapidly, in particular with respect to terminal equipment. On 16 May 1988, the Commission issued a“Commission Directive on Competition in the Markets in Telecommunications Terminal Equipment” — “Terminal Equipment Directive” —³⁾ based on its regulatory powers under Art. 90(3) of the Treaty of Rome (“EEC Treaty”).This article explores the regulatory scope of the Terminal Equipment Directive which has recently been challenged by the French government before the European Court of Justice.     

Obesity in Europe: the strategy of the European Union from a public health law perspective

In 2007 the European Commission published a White Paper on a "Strategy on nutrition, overweight and obesity", proposing measures to impede the current trend towards a steady gain in weight by Union citizens. In this article, these ideas are discussed critically in the light of the competences of the Union and from a public health law perspective, in order to scrutinise the effectiveness of the measures and to identify shortcomings in the White Paper. One focus of this article will be European food legislation, as food is one of the leading causes of people being overweight or obese.     

个人信息保护立法理念探究——在信息保护与信息流通之间

个人信息保护法应当是对个人信息进行合理利用与恰当保护相结合的法律.欧洲政府和美国政府采取了不同的路径来保护个人信息.欧洲更为重视从权利角度出发保护个人信息,美国则更注重从信息流通的角度出发促进个人信息的自由流通.个人信息保护的"权利保护论"与"自由流通论",以及因为对上述理论的解释与侧重不同而产生的欧洲的国家立法主导与美国的企业自律的个人信息保护模式,均有其合理与可取的方面.我国的个人信息保护法在立法理念上应当兼顾个人信息的"权利保护"与个人信息的"自由流通",以达到二者之间的和谐与平衡.     

石油公司应该对船舶油污损害负责吗?——评欧盟法院对Erika轮油污案的裁决

从2008年6月欧盟法院就法国最高法院向其"请示"的Erika轮油污案之裁决入手,分析油污民事责任公约的立法背景,指出在民事责任公约的体系之下承担污染损害责任的应该是船东,而不应向作为货方的石油公司进行索赔。欧盟法院所认定的石油公司可被视为欧盟废弃物相关法律之下的废弃物制造者,以及石油公司可能需要就因船舶溢油事故导致的海域石油污染损害负责之观点与现行的油污民事责任公约相悖。     

无因管理人的报酬请求权问题研究——兼论民法制度设计中的“人性预设”问题

中国民法理论不承认无因管理的报酬请求权,但欧洲大多数国家都承认在特定情况下无因管理的报酬请求权。究其缘由,主要是中国民法以一种固定的人性预设作为制度设计的前提,而欧洲国家是通过适当的权利义务配置,去激励当事人从事社会所期许的行为。中国民法理论必须克服传统思维中模式化的＂义利之辨＂,以一种更加现实的态度去设计民法制度。     

Future Developments

Last Quarter/End 2006 Adoption by the European Commission of draft proposals for theextension of the decision of equivalence of third country accountingstandards to IFRS with respect to the Transparency and ProspectusDirectives. UK FSA to publish its supplementary Consultation Paper on systemsand controls covering the requirements arising from MiFID. UK FSA to publish its feedback and policy statement on its ConsultationPaper on systems and controls covering the requirements fromMiFID. Capital Requirements Supervisory Disclosure – CEBS' commonEuropean framework for supervisory disclosure (qualitative     

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.     

欧盟私法法典化与我国民法典的制订

随着欧盟一体化进程的加快,客观上要求欧盟在私法领域制定一部内部协调统一、具有宏观性、体系性的民法典,经过法学家的理论准备,欧盟官方对学术研究的响应和对私法发展方向的正确选择,最终促使《共同参考框架（草案）》（DCFR）的完成。欧盟私法法典化进程中,虽然具有浓厚的工具色彩,但融合了不同的法律文化与传统,体现出了现代私法的最新理念与精神。欧盟私法法典化在法典的制定、法典的精神以及法典的结构、内容、统一性方面,无疑对我国民法典的制定具有很大的借鉴意义。     

孟德斯鸠对东西方政体与法制的比较研究

孟德斯鸠认为东方专制政体与欧洲君主制的区别在于君主治国是否遵守法律。东方专制君主不受宪章或法律的约束,欧洲君主治国遵循基本的法律和惯例,其权力受到很大的约束和限制。前者缺少民法与商法,刑法严酷,诉讼程序简单,后者则有繁杂而系统的民法,且诉讼繁复拖延,这有利于保障人民权利。东方专制政体是普遍的政治奴隶制,人民生活悲惨,一切都被掠夺,远不如欧洲君主国的人民生活幸福安定。     

Future Developments

July 2006 UK FSA Consultation Paper ‘Implementing MiFID for firmsand markets’ to be published. Consultation period to closein October 2006. 6 July: Deadline for responses to Committee of European BankingSupervisors’ (CEBS) consultation CP02 on its standardsfor outsourcing of     

寻找丢失的人格--从罗马、德国、拉丁法族国家、前苏联、俄罗斯到中国

人格即法律主体资格。在罗马法中,人格———身份具有公私法混杂的特征;在近代欧洲大陆国家开始的法典化过程中,拉丁法族国家民法中的人格一词,依然包含公法因素,而德国法则创造权利能力概念取代人格,试图将人格私法化,但这样做却丢失了人格;前苏联民法中,人格则具有主体性要素之法律保护意义上的人格权,知识产权中的人格权,法人的人格权三种含义;新制定的俄罗斯民法典则回归到传统的主体资格意义上的人格概念。在我国民法典制定时,应恢复传统意义上的人格。     

State‐Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights

State‐sponsored homophobia emerged in certain Central and Eastern European states in the past decade, with the denial of the right of assembly for gay pride marches. However, more recently there has been progress in the recognition of the fundamental democratic right of assembly. What accounts for this progress in fulfilling commitments enshrined in the European human rights treaties? This article proposes that the response of European organizations, in particular the Council of Europe and the European Union, as well as human rights nongovernmental organizations working in collaboration with local civil society organizations, have been critical to this progress. Previous literature has described a “boomerang” effect, in which aggrieved citizens use transnational activist networks to publicize human rights violations and put pressure on governments to fulfill their international legal commitments. To understand the functioning and effectiveness of the “boomerang” we introduce the concept of the “ricochet”—a process in which various institutions and civil society rapidly exchange information as well as political and legal argumentation. We posit that the ricochet is an integral process in the development of a European consensus on the human rights recognized by the European Court of Human Rights. Four cases have been selected for empirical analysis: Poland, Latvia, Serbia, and Russia. In analyzing the ricochet of information and argumentation between institutions and civil society, we find the consensus has been framed around the right of assembly, instead of the more contested area of human rights and sexual orientation.     

The Effect of Human Rights on Criminal Evidentiary Processes: Towards Convergence,Divergence or Realignment?

This article examines the contribution which the European Court of Human Rights has made to the development of common evidentiary processes across the common law and civil law systems of criminal procedure in Europe. It is argued that the continuing use of terms such as 'adversarial' and 'inquisitorial' to describe models of criminal proof and procedure has obscured the genuinely transformative nature of the Court's jurisprudence. It is shown that over a number of years the Court has been steadily developing a new model of proof that is better characterised as 'participatory' than as 'adversarial' or 'inquisitorial'. Instead of leading towards a convergence of existing 'adversarial' and 'inquisitorial' models of proof, this is more likely to lead towards a realignment of existing processes of proof which nonetheless allows plenty of scope for diverse application in different institutional and cultural settings.     

Adoption,Homosexuality and the European Convention on Human Rights: Gas and Dubois v France

On 15 March 2012 the European Court of Human Rights (the Court) issued its first judgment addressing the differential treatment of same‐sex and opposite‐sex couples in respect of the adoption of a child. 1 The Court held that excluding same‐sex couples in civil partnerships, who have no legal right to marry, from adoption provisions available to married opposite‐sex couples does not violate rights guaranteed by the European Convention on Human Rights (the Convention). I argue that the Court's reasoning in Gas and Dubois v France is unpersuasive and unsustainable in light of its wider case law.     

德国国际私法渊源的新发展

在传统上,德国国际私法的渊源包括制定法、德国缔结或者参加的各种国际私法条约、习惯法和判例法,但是随着欧盟国际私法统一化的深入发展,尤其是欧洲共同体在公司法、合同法、物权法、知识产权法、破产法和国际民事诉讼程序法等领域的立法不断加强,欧盟法中的国际私法规范逐渐渗入德国国际私法,从而使德国国际私法的渊源突破了传统的范围,越来越多地打上了欧盟法的烙印,呈现出“欧盟化”倾向。     

欧共体“无争议债权支付令”介评

欧共体2004年4月21日通过的第805号规则对“无争议的债权（uncontested claims）”设立了“欧洲执行令”，该支付令可以在各成员国直接得到承认和执行，从而简化了欧共体成员国之间民商事判决的执行手续，进一步加强了各国在判决承认与执行方面的合作，体现了欧洲国际私法的发展方向。