Smoking Guns: European Cigarette Smuggling in the 1990’s

This article concerns European cigarette smuggling over the past decade and examines the actors, structures and relationships which facilitated the illicit trade. It discusses the central role played by actors not traditionally associated with organised crime, such as multi-national tobacco companies, Swiss banks and the state security agencies of various Balkan states. It demonstrates how domestic legislation in Switzerland and instability in the Balkans prevented national law enforcement agencies from effectively dealing with this international network at an earlier stage. The article also focuses on the history of local and national law enforcement investigations as well as the integrated multi-national investigation project later initiated by the EU and member states. The article's conclusions suggest that while smuggling actors have successfully adapted to the process of globalisation – financial and state deregulation – law enforcement agencies remain at a disadvantage as they are hampered by the domestic legislation in nation states such as Switzerland and the United States. While cigarette smuggling was and is a major illicit industry, it has not been the subject of much academic scrutiny. This article, based on field research in the Balkans and EU member states aims to contribute to a broader understanding of a problem involving a multiplicity of criminal actors, states and law enforcement agencies.     

How Bureaucracies Listen to Courts: Bureaucratized Calculations and European Law

The European Court of Justice, and courts in general, were key actors in the creation of the European Union (EU). However, they cannot change major policy without political supporters to lobby and litigate for implementation. We argue that part of the resolution of this apparent paradox comes from complementing existing work on the activities of EU courts and litigants with a focus on a third actor: implementing bureaucracies, whose effect on law and politics has not been a focus of studies of EU legal development. Their calculations about whether to pay attention, lobby, and comply shape the impact of the law. Those calculations are variable and patterned; when and how bureaucracies listen to courts varies in predictable ways. We find evidence for this proposition in the case of EU health care services law, both in the secondary literature and in empirical studies of France and Spain.     

Applying Precaution in EU Authorisation of Genetically Modified Products—Challenges and Suggestions for Reform

In this article, I endeavour to examine concrete challenges that arise with regard to implementation of the precautionary principle in the field of European Union regulation of genetically modified organisms (GMOs). Developed by the European courts into a general legal principle, precaution requires EU regulators to strike a balance between scientific and political legitimacy when taking decisions on risk‐entailing products. Following this understanding, the current GMO legislation creates precautionary governance structures that allow for a broad input into the authorisation process, not only of scientific, but also of ‘other legitimate factors’. At the same time, it can be criticised for narrowly defining precaution as a decision rule, which, if applied correctly, will lead the decision maker to the ‘right’ decision. I argue that this misconception is one of the reasons why, in the current authorisation practice, the EU institutions fail to apply the principle in a balanced way, falling into the extremes of either purely science‐based decision making or a highly politicised precautionary rhetoric. I suggest that in order not to be paralysing, precaution should be understood as a procedural principle that provides for precautionary governance, thus enabling regulators to make appropriate risk choices.     

A Shift in Focus: Systematisation in European Private Law through EU Law

The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi‐level European legal order. With the realisation that private law is and will remain complementary regulated at EU level and in national laws, a re‐orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re‐orientation is needed in relation to substance, process, instruments and enforcement; a more fundamental question needs to be addressed, however, in order to ensure coherence in the development of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.     

Regulating behaviours on the European Union internet,the case of spam versus cookies

This article examines the soft-law politics of regulating behaviours on the internet in the European Union (EU) context. It shows the struggles behind internet standards, and delegation of power to commercial actors, while looking at spam and web-cookies as a case study. This article argues that by creating a false division between private and public spaces on the internet, it was possible to legitimize certain practices over others, despite being similar. In this way, spam was categorized as unsolicited communication associated with private space, whereas web-cookies were categorized as wanted communication in public space. By influencing and lobbying EU legislation and Internet Engineering Task Force (IETF) technical standards, the advertising industry and tech companies simultaneously authorize and institutionalize their own practices and illegalize people’s ‘problematic’ behaviour and other advertising companies. In this way, EU legislation and internet standards create a naturalized discourse that institutionalizes the roles of different actors in the online market, while emphasizing the central role of commercial actors in creating, defining, managing and enforcing the online market. Thus, spam operates as a regulatory tool applied to any type of behaviour that can interfere with the functioning of the EU e-commerce.     

论中关村立法的创新性品格

中关村立法充溢着创新性品格。它在国内立法中首次完整地构建了法治环境的原则框架,特别是规定了组织和个人可以从事法无明文禁止的活动。它创设了三十多项新制度,特别是第一项确立了高新技术成果作价出资占资本的比例可由出资各方约定的制度;第一次确立了市场主体可实行股份期权和智力要素参与分配的制度;第一次确立了比较系统的反卡特尔行为和滥用经济力行为的制度;第一次确立了风险投资可采取有限合伙的制度;第一次确立了境外经济组织或个人可与境内组织或自然人合资、合作的制度,第一次规定了禁止国家机关和市场主体使用盗版软件和电子出版物的制度;第一次设专章对政府行为规范作出系统规定,第一次设置了政府行政不作为的法律责任。它蕴含着先进的立法理念,它鲜明地体现了时代的先进精神——知识市场经济的精神。     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.     

Horizontal Liability for Damages in EU Law—the Changing Relationship of EU and National Law

The article focuses on damages liability between private parties—referred to as horizontal liability—that is based on EU law. Generally, this kind of liability may be based on EU secondary legislation or be derived from substantive EU law and legal principles. The article seeks to analyse the latter: liability in an area of EU law where so‐called procedural autonomy still, at least apparently, prevails. Special attention is paid to the lively interface between EU law and national remedies and to the increasing EU law requirements for the enforcement of EU law in national courts. Recent case‐law on private liability for damages caused by competition infringements is discussed as part of a more general question concerning the ways in which the relationship of EU law and national enforcement frameworks is developing.     

经济立法的生态化

在某种程度上,经济法会矫正建构在主体性哲学上的私法制度之不足,以调整各经济参与者、公共利益、生态之关系,故而经济法的发展表现出对生态哲学的内在需求与渴望。经济立法的生态化并不是简单地增加生态保护的条文和制度,更重要的是在经济立法的法哲学基础、理论基础、指导原则和具体制度设计中注入生态理念。生态理念的系统性、整体性、未来性等特点要求经济法立足整体、系统整合、纵横协调、面向未来。     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

后“SchremsⅡ案”时期欧盟数据跨境流动法律监管的演进及我国的因应

“SchremsⅡ案”对以隐私权和数据保护为核心构建的欧盟数据跨境流动规则体系产生重大影响,它要求无论使用何种数据跨境流动工具,都必须确保第三国能够提供与欧盟同等的保护水平。在该案的影响下,《欧盟基本权利宪章》在数据保护领域的地位进一步提高,保障措施的适用愈发严苛,欧洲数据保护委员会在数据保护领域将扮演更重要的角色,数据跨境流动欧盟法规则与国际贸易法的不兼容问题日益凸显。欧盟虽然结合SchremsⅡ案的判决完善了对数据跨境的法律监管,但依然没有减少外界对其监管合理性的质疑。我国对数据跨境流动的监管存在着配套立法不健全、规则可操作性差、多元价值失衡、缺乏内外联动的“中国方案”等问题。对此,应完善我国相关立法,加强中欧国际合作,共同引领构建数据跨境流动的国际规则。     

The Transposition of EU Law: ‘Post‐Decisional Politics’ and Institutional Autonomy

The transposition of European Union (EU) law into national law is a significant part of the EU policy process. However, political scientists have not devoted to it the attention that it deserves. Here, transposition is construed as part of the wider process of policy implementation. Drawing on implementation theory from the field of public policy, the article outlines three sets of factors (institutional, political, and substantive) that affect transposition. Second, the article examines the manner in which eight member states transpose EU legislation, and identifies a European style of transposition. An institutionalist approach is employed to argue that this style is not the result of a process of convergence. Rather, it stems from the capacity of institutions to adapt to novel situations by means of their own standard operating procedures and institutional repertoires. It concludes by highlighting (a) the partial nature of efforts at EU level to improve transposition, themselves impaired by the politics of the policy process and (b) some ideas regarding future research.     

Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration

European economic integration with a minimalist social policy at EU level was in part made possible by strong domestic labour market and social welfare institutions. The main contention of this paper is that EU market liberalisation was embedded within institutions of social citizenship at domestic level, which served to counter the liberalisation of the internal market. But this settlement has been put under strain. In addition to the challenges posed to the sustainability of European welfare states by the global economic crisis, the internal market jurisprudence of the Court of Justice casts doubt on the sustainability of the ‘embedded liberal bargain’. This paper focuses on the role of the Court, in particular in its jurisprudence on the interaction between (EU) market freedoms and (national) labour law, which undermines the ability of states to retain their regulatory autonomy over labour or social welfare law and, arguably, speeds up the unravelling of the ‘embedded liberal bargain’.     

Justice,Legitimacy and the Authority of Legislation within the European Union

What are we to make of the authority of legislation within the EU? EU lawyers have questioned the significance of legislative decision‐making within the EU. This article challenges these views and argues that the EU legislature must enjoy adequate freedom to shape EU law with the general interest in mind. Institutional accounts that seek to curtail the authority of legislation tend to rest upon ‘content‐dependent’ conceptions of political legitimacy, according to which the legitimacy of a decision depends on its moral qualities. Such conceptions overlook reasonable disagreements on justice and rest upon an overly optimistic (pessimistic) view of the Court (the legislature). The article argues for a content‐independent conception of legitimacy, following which the benefits of legislative decision‐making are more easily understood. The authority of legislation deserves wider recognition among EU lawyers for reasons of political legitimacy and because the EU legislature is better positioned to decide in the general interest.     

Risk Regulation and Deliberation in EU Administrative Governance—GMO Regulation and Its Reform

The article analyses the problems of EU risk regulation of genetically modified organisms (GMOs) through the lens of deliberative theories of EU law and governance, such as deliberative supranationalism and experimentalist governance. Previous research had suggested that the GMO issue is not conductive to deliberation within EU institutions because of its high politicisation. This article argues that another equally salient factor is the scientification of the GMO authorisation process. Scientification stands for the Commission's overreliance on epistemic legitimacy as the basis for risk management. Given the deadlock of comitology in this field, scientification is exacerbated by a reversion to top‐down regulation by the Commission. As a result, political responsibility for GMO authorisations gets lost. This article argues that both scientification and politicisation are mutually accelerative processes ultimately leading to a break down of dialogue at the EU level. This contradicts the assumption that deliberation is fostered by technocratic ‘behind closed door’ decision‐making. In the GMO case, the top‐down imposition of epistemic authority has only increased politicisation contributing to the de‐legitimation of all EU institutions involved in GMO regulation. The recent EU reform on national opt‐outs is not sufficient to address this problem. A successful reform should mitigate the negative effects of both politicisation and scientification.     

论我国土地制度改革的实验主义进路———以 1978 ~2013 年土地立法为样本的分析

实验主义立法进路的出现,是政治经济体制巨变所催生的产物.30多年的土地制度改革则是该立法进路的一个缩影,而暂行法、试点立法则是它的具体表现形式.在实验性立法的保障下,土地制度不仅平稳、顺利地过渡到市场经济体制,而且还形成了全新的土地法律体系.虽然在当下的土地制度改革中,实验主义立法进路的负面效应已经呈现出来,但制度风险小、操作成本低的优点仍使得它具有广阔的生存空间.因此,面对新一轮的土地制度改革,实验性立法必须在立法的规范性上作出适度调整,以保障土地制度改革的顺利进行.     

论欧盟金融服务法中的母国控制原则

在欧盟金融服务法中,母国控制原则是指跨境金融服务应主要遵循母国的监管规则,相应的监管责任也主要由母国监管当局承担。母国控制原则不能适用于未经金融服务指令协调的领域。相互承认原则是母国控制原则的前提和基础,母国控制原则又是实施相互承认原则的必然要求和具体体现。这一原则的形成与欧盟金融服务市场一体化方法的转变有着密切联系,其发展也是这种新的一体化模式广泛推行的必然结果。立法和司法实践表明,母国控制原则的适用范围尚不明确,其价值没有得到充分的体现。为了消除跨境金融服务的法律壁垒,推动金融服务市场的一体化进程,欧盟金融服务立法应向协调行为规则、进一步明确划分监管责任并扩大母国控制范围的方向发展。     

技术标准中专利权垄断行为的理论分析及其法律规制

在专利的标准化及其实施过程中,有可能出现专利权的滥用现象,特别是专利权的垄断行为。技术标准中专利权垄断行为导致专利制度的异化,破坏了知识产权制度的利益平衡原则,并扭曲了公平自由的国际市场经济秩序。美国的反托拉斯法、欧盟的竞争法和日本反垄断法体现了对该种垄断行为的基本态度和解决路径,起到积极的规制作用。我国的《反垄断法》一定程度上加强了对滥用知识产权行为的规制,但并不能全面解决国际贸易中产生的众多垄断行为或者限制竞争行为。在技术标准越来越成为新的技术壁垒的背景下,积极借鉴欧盟和美国等的相关立法,根据我国的国际竞争政策需要,构建我国规制技术标准中的专利权滥用行为的法律体系已成当务之急。     

立法与改革:以法律修改为重心的考察

1978年以来,中国逐步从"创法时代"迈向"修法时代"。1978—1993年,是中国改革启动及社会开始转折的艰难阶段,立法工作的重心放在对"政治屋顶"的修缮甚至重构上。1993—1998年,立法理念总体上注重与改革发展的决策相结合,市场经济法治化初现端倪。1998—2008年,法律创制步伐放缓,法律修改力度加大,市场经济法治化全面铺开。2008—2014年,立法进入引领全面深化改革的新阶段。梳理与总结1978—2014年改革进程中法律修改的基本经验,分析立法工作重心逐步向法律修改转移的特点,有助于准确理解全面推进依法治国进程中立法与改革关系的规律,更好地观察和把握中国社会的发展轨迹和未来趋势。     

The balance between equity and efficiency; reflections on the goals of the new Nigerian competition law

In January 2019, the Nigerian Government finally enacted its first competition law after several attempts to do so previously failed. Since all competition regimes advance one or more goals, the paper provides a critical evaluation of what the goals of the Nigerian Competition Law ‘is’ or ‘are’ and/or what they should be. This paper posits that discussion on goals must relate fundamentally to the true reason(s) the nation ‘needs’ an antitrust legislation and the relationship between these reasons (as reflected in the preamble of the legislation) and the prohibitory aspects of the law.Although the goal of competition is generally thought to be relating to promoting economic efficiency, however, for developing countries (including Nigeria), competition must compose of an important equity dimension. Ironically, the work uses the ‘developed’ experience of the EU in later stages to show that the goals of an antitrust policy are never static but dynamic and may not necessarily always admit of ‘efficiency’ considerations. This paper’s argument is that Nigeria needs a welfarist approach to competition which means efficiency should sit as a top objective and that any compromise on economic efficiency as the goal must be accommodated only to the extent that basic principles of a market driven competition is not harmed. Consequently, the work reflects on how the new Nigerian law has provided a balance between market efficiency and other goals of competition and how the new Nigerian competition body can operationalise this balance in the development of the nation’s antitrust policy. In this regard, the EU also provides some important enforcement lessons.