Constitutional Legitimacy and Credible Commitments in the European Union

Abstract:  The idea that the European Union must not adopt a constitution is gaining ground in current legal research on European constitutionalism. The N-C (No Constitution) thesis is being forcefully defended, in particular, by authors in the 'contextual' or 'law in context' tradition. However, likewise using a 'contextual' methodology, in this article I argue that the N-C thesis is in many regards misplaced. In this work, I defend the idea that Europe must adopt a constitution for reasons of credibility. I also try to show the main pitfalls of the N-C thesis.     

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.     

论独立监管机构的经济法主体地位——以马克思主义社会权力机构学说为视角

早在19世纪中叶,马克思、恩格斯就已经预见到社会权力机构的兴起,这一预见已被中西方主要国家独立监管机构的产生与发展实践所证明。作为日益重要的经济管理主体,独立监管机构的公益代表性与权力合一性完全契合经济法主体特征的基本要求,亟需在经济法主体理论上对此作出回应。纳入独立监管机构考量后的经济法主体理论更加完善,可以明晰国家与政府在经济法主体类型上的差别,解释政府作为经济法主体和行政法主体在性质上的不同,并在一定程度上回答了社会中间层的经济法主体地位问题。基于独立监管机构的发展现状与趋势,经济法主体将呈现出"政府——独立监管机构——市场主体"互动模式。     

Decentralisation and Integration into the Community Administrations: A New Perspective on European Agencies

Abstract: This paper focuses on the adoption of a number of Community regulations, each for a specific sector, to be implemented not just by a supranational administration (central or peripheral), but by a plurality of national, supranational and sometimes mixed authorities, with a special role assigned to a Community office set up by the same legislation for a given sector, and granting it legal personality. The purpose of this paper is to verify whether the various regulations by sector ought not to be regarded as variants of an emergent general model of joint exercise of certain Community functions. It is argued that such general model is still in the making, but it is in the process of becoming consolidated, notwithstanding the variety of approaches adopted by European legislators. Such a pattern is characterised by specific, differentiated organisational and procedural features. This conclusion is relevant in several different ways, the first of which is that it provides new conceptual tools for interpreting and explaining the process of administrative integration between supranational and national public authorities, in particular by specifying the taxonomy of the patterns through which a Community function can be carried out by two different authorities acting jointly. Second, the decentralised integration model should be considered as a sound and feasible option for the administrative evolution of the Community legal system.     

Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia

This article provides a critical next step in scholarship on climate change litigation's regulatory role. It creates a model for understanding the direct and indirect regulatory roles of this litigation. It then applies this model to the United States and Australia, two key jurisdictions for climate change lawsuits, in order to explore the regulatory pathways that this litigation has taken, is taking, and likely will take. This analysis helps to illuminate the ways in which litigation influences regulation and forms part of climate change governance.     

中欧化学品安全法律比较研究

化学品管理已经成为欧盟环境和健康领域管理的重点内容.欧盟逐步完善了化学品管理体系,欧洲议会通过了<化学品注册、评估及许可法规>(REACH)报告,欧盟化学品管理立法实现了一体化.欧盟大多数成员国的化学物立法,既包括综合性的化学物环境管理基本法,也包括专门的法律和法令.欧盟化学品管理法的立法成就与成功的经验值得我们借鉴.我们要尽快建立健全我国化学品安全和环境管理法规标准体系,加强国家化学品管理能力建设工作.尽早实现我国化学品安全和环境管理与国际化学品安全管理体系相接轨.     

Minimum Criminal Penalties in the European Union: In Search of a Credible Justification

The EU has recently mooted the possibility of harmonising minimum penalties. ‘Minimum criminal penalties’ refers to the lowest sanction available for a judge in a concrete case. Calculating the actual penalty involves legal mechanisms that might mitigate that penalty. Comparative analysis reveals that a distinction needs to be made between minimum penalties included in national criminal codes (in abstracto penalty) and the lowest penalty that might be imposed (in concreto penalty). Although in abstracto minimum penalties are found in the criminal codes of most Member States, they are fiercely opposed in others. In concreto minimum penalties that constitute an absolute limit to the discretion of a judge are even more controversial. Against that background, this contribution reviews whether or not the EU should force the Member States to impose absolute, in concreto minimum criminal penalties. It examines the justifications presented in recent proposals in light of legal and criminological research.     

A Comparative Analysis of the Drafting of European Private Law

The development of the 'Common Frame of Reference' is a highly prominent topic on the agenda of European integration. However, its underlying procedures have had only limited investigation. This article discusses the European private law project by inquiring into the drafting experiences of four other private law legislative processes, with a focus on sales law. These instruments concern Article 2 (on sales) of the American Uniform Commercial Code, the Vienna Sales Convention, the Dutch Civil Code and the Directive on Consumer Sales and Associated Guarantees. Ultimately, the article asks what can the European project learn from these experiences.     

Accountability, Control and Independence: The Case of European Agencies

This article points at two problematic assumptions made in some of the contemporary European agency literature. It proposes a conceptual framework, integrating accountability, autonomy and control, and aims to demonstrate how this type of conceptualisation contributes to clarifying problematic aspects of the current European agency debate. Empirical evidence from interviews with high-level practitioners is provided to illustrate the relevance of the proposed framework. The empirical information reveals that, at times, the de facto level of autonomy displayed by some European agencies is below the autonomy provided by the formal legal rules as a result of ongoing controls exercised by one (or other) of the principals. The repercussions that flow from these empirical insights for the agency debate in general, as well as for our understanding of agency accountability, will be discussed at length.     

欧盟信用评级机构监管机制研究

2008年金融危机爆发后,欧盟总结了金融危机的经验教训,改变了以市场自律为主的约束机制,开展了一系列立法行动,对信用评级机构的监管机制先后进行了三次改革.介绍了欧盟信用评级监管法规的演变路径,针对改革中恢复市场纪律这一目标,着重研究2013年第三次改革后所形成的监管机制,对目前欧盟的信用评级机构监管方式进行了探讨,并对欧盟信用评级的立法改革在法律实践中所面临的困境进行了分析.     

中国政府监管机构构建中的缺失与前瞻性思考──兼议政府监管领域"大部门体制"的改革方向

中国目前虽然成立了一些冠以"监管"或"监督管理"之名的机构,但与现代意义上的监管机构还有相当大的差距。中国政府监管机构的设立应坚持"立法先行"的原则,避免"三定方案"带给监管机构的尴尬境地;中国政府监管机构不宜采用美国的独立管制委员会模式或以英国为代表的公法人模式,现阶段比较现实和稳妥的做法是在国家行政体制框架内设置行政机构类型的监管机构,最好采用隶属于国务院的监管机构模式,并通过法律机制保障其独立性;面对产业汇流的趋势,在经济性监管领域,应设立综合性的监管机构。     

The Mechanics of Cultural Diplomacy: A Comparative Case Study Analysis from the European Context

The National Institutes for Culture have not attracted much scholarly attention examining their managerial practices. The aim of this article is to explore how the state expresses its agency over the Cultural Institutes of six European countries: the UK, Germany, France, Spain, Sweden, and Greece. Agency presents varying modalities, making instrumentalism more multifaceted than has been implied so far. The authors are introducing here a framework of five “touchpoints” to capture and analyze instrumentalism in cultural diplomacy. Funding, agenda setting, evaluation, hierarchy, and appointment power constitute the typical system of interactions between the Cultural Institutes and their reporting authorities.     

抵御外来物种入侵:我国立法模式的合理选择——基于国际社会与外国法律规制模式的比较分析

通过法律规制外来物种入侵是各国防治外来物种入侵采取的重要手段之一。目前国际社会倡导和各国立法主要确立了“法律+国家防治战略”的法律规制模式,既包括确立预防、早期监测和快速反应、控制管理评估等基本的法律制度,也包括以国家防治战略形式体现的灵活性对策措施。此外各国还建立了对外来物种入侵实施统一管理的行政体制。我国应当借鉴国外通过法律规制外来物种入侵的成功经验,尽快制定外来物种入侵防治法律并构建统一的防治外来物种入侵的管理体制。     

Spaces and Places: A Systems Theory Approach to Regulatory Competition in European Company Law

Abstract:  This article takes issue with the longstanding oppositional themes of harmonisation versus regulatory competition in European company law. Instead of embracing one approach over the other in exclusivity, the article draws attention to the persisting mixture of approaches to an emerging European-wide law regulating the business corporation. Against the background of an ongoing struggle over identifying the goals and taboos of the European legislator's mandate in regulating the company, the argument put forward here is that this very struggle is reflective of the nature of the evolution of company law in an 'integrating Europe and a globalising world'. European attempts of developing European company law as part of a larger initiative of improving the Union's potential for innovation and competition are thus likely to meet with the challenges that contemporary Nation States are facing when adapting their modes of regulation and representation to the demands of an increasingly complex and decentralised fields of market activities. Situating the law of the business corporation within the larger theme of European integration on the one hand, and of issues of market regulation, domestic, transnational, and international, on the other, suggests the adoption of a systems theory-based approach to understanding the boundaries of law in this multilevel and multipolar process.