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.     

The Governance of the European Union: The Potential for Multi-Level Control

In its White Paper on the Governance of the European Union the European Commission has adopted a narrow concept of governance which focuses almost exclusively on public institutions exercising legislative and executive power (in other words institutions of government ). The article suggests that a theory of multi-level control in the EU would attend to greater variety both in the available governance institutions and the techniques of control. The deployment of an analysis grounded in theories of control suggests that the European Commission is substantially holding to a long-held preference for instruments of government premised on the exercise of hierarchical power. This reform path sits uneasily with revived concerns to render the governance of the EU more democratic. Equally it inhibits the generation of more efficient governance arrangements which place greater dependence on communities, competition, and design as alternative bases of control to hierarchy. Control theory suggests that the assertion of different reform agendas and institutional structures by other actors can check the more wayward (and arguably illegitimate) tendencies within the Commission plan, whilst drawing in alternative bases of control which, when combined, may yield technically superior governance solutions.     

Restrictions of the sale of pharmaceuticals and medical devices such as contact lenses over the internet and the free movement of goods

In the light of new case law development, this article examines whether national restrictions on the online sale of pharmaceuticals and medical devices such as contact lenses are consistent either with EU secondary law, either with Article 34 TFEU that prohibits measures having equivalent effect to quantitative restrictions on imports. In particular, this article focuses on an analysis of two judgments on this important issue delivered by the Court of Justice of the European Union in 2003 and 2010, namely the Deutscher Apothekerverband decision and the Ker-Optika decision.     

Rediscovering Civil Society: The European Union and the White Paper on Governance

The concept of 'civil society' has been rediscovered in contemporary discourses concerning the relationship between democracy and governance. This paper analyses this rediscovery in the more specific context of the European Commission's 2001 White Paper on European Governance. However, processes of transnationalisation, governmentalisation and autonomisation may compromise much of the potential of 'European civil society' as an intermediating sphere of social action. By reinforcing these processes, the White Paper undermines the normative claims made for a civil society premised upon the voluntary nature of its associative forms and its distinctive open, communicative and deliberative rationality.     

欧盟食品安全法律体系评析

欧盟经过近50年的改革和发展,逐步建立起完善而严谨的食品安全法律体系,《食品安全白皮书》以及第178／2002（EC）号法规即《食品基本法》是欧盟关于食品安全的基本法律,同时欧盟还制定有大量具体的食品安全法规及指令以及完整而详细的技术标准体系。欧盟对食品链实行从“农场到餐桌”的全程监管,欧洲食品安全管理局在食品安全监管中发挥着重要的作用。中国最近颁布实施了《食品安全法》及其实施条例,对于食品安全监管制度进行了改革,欧盟关于食品安全的法律体系、法律制度以及监管模式对于中国具有重要的借鉴意义。     

Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice

The article considers some unresolved policy choices associated with the implementation of 'proportionate dispute resolution', one of the most interesting ideas in the Department of Constitutional Affairs' White Paper Transforming Public Services: Complaints, Redress and Tribunals , published in 2004. It attempts to put the White Paper into context by tracing the Government's concern with tribunal reform over the last 50 years. It briefly compares the Franks Report, published in 1957, with the Leggatt Report, published in 2001, and outlines the steps that led to the publication, three years later, of the White Paper. It then analyses the similarities and differences in the approaches to reform taken by the Leggatt Report and the White Paper. The article focuses on the principle of 'proportionate dispute resolution', the idea that the ways in which cases are dealt with should reflect the nature of the dispute and what the person in dispute with a public body wishes to achieve. Seven policy options are considered, all of which hold out the prospect of enhancing administrative justice, either by reducing the incidence of disputes or by handling them more effectively. They are then assessed in terms of how well they are likely to do so.     

The Collective Labour Law of the European Union

Abstract: The collective labour law of the European Union is embedded in a variety of legal measures incorporating principles of collective labour law reflecting national experience. The dynamic of its development has been the spill-over effect of these principles, through their translation into the status of EU law, and their development by decisions of the European Court of Justice. The article outlines a framework of principles which, it is argued, are currently embodied in the collective labour law of the EU. They include collectively bargained labour standards, workers' collective representation, workers' participation, and protection of strikers against dismissal. In addition, there is a parallel principle of collective solidarity emerging in the social security law of the EU. The principle of collective negotiation of labour law introduced by the Protocol and Agreement on Social Policy may be seen as the founding constitutional basis for the collective labour law of the European Union.     

Antitrust Enforcement: Abuse Control or Notification?

The European Union is currently revising its system of centralised authorisation for agreements between firms falling within the scope of Article 81 (1) of the EC Treaty but qualifying for exemption from the general prohibition. The proposed reform in the 1999 White Paper on Modernisation of the Rules Implementing Articles 81 and 82 of the EC Treaty involves the abolition of the notification and exemption system and its replacement by a directly applicable exception system where restrictive practices qualifying for exemption are lawful per se and subject to abuse control. This paper compares both the current notification system and the proposed system of ex-post control in a game-theoretical framework. If precommitment to an enforcement probability by the antitrust authority is not possible and a mixed equilibrium exists for both systems, the notification system is superior to the system of abuse control in terms of social welfare.     

欧盟所得税协调与税收非歧视待遇的发展

为了保障共同市场中服务、人员和资本等要素的自由流动,欧盟禁止成员国所得税法采取基于国籍的歧视措施,也禁止成员国税法限制本国国民在共同市场内行使自由流动的权利。欧盟的实践拓展了双边税收协定中的非歧视待遇,是所得税区域性协调的尝试。但是,欧盟现行机制制约了税收非歧视待遇的进一步发展。     

Crime and the EU's Constitutional Future in an Area of Freedom, Security, and Justice

Abstract: The European Union is finalising negotiations in respect of a constitution that will define its identity and future. The draft constitution begins with a quote from Thucydides ‘Our constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number’. 1 In this article I look at the proposed constitutional framework of the European Union from the perspective of the gradual realisation of measures in criminal law capable of affecting the lives of individuals. The central question is to what extent the Union is providing itself with the tools to achieve democratic exercise of the power to maintain order and to punish individuals within a single area of freedom, security, and justice. Within the draft constitution an ambiguity arises as regards the principles which underlie this part of the project: mutual recognition and approximation. Mutual recognition of national decisions maintains power within the borders of the state, approximation leads towards a consolidation of power. The extent to which the constitution pulls in two rather different directions and the consequences for the individual are examined here.     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

Anti Race Discrimination Measures in Europe: An Attack on Two Fronts

Abstract In recent years, two measures against racial discrimination have been taken in Europe: the European Union adopted a Council Directive implementing the Principle of Equal Treatment between Persons irrespective of Racial or Ethnic Origin in June 2000; and, in December 2002, the European Commission against Racism and Intolerance, a body of the Council of Europe, adopted General Policy Recommendation no 7 on National Legislation to Combat Racism and Racial Discrimination. This article reviews these two instruments, which show many similarities, but also some differences. The differences are mainly their force, their personal and material scope, and their grounds for discrimination. The relationship between the two, and how they influence and strengthen one another to increase the pressure for adequate and effective legislation within the Member States of the European Union, is discussed and analysed.     

Liberty: human rights and mental health

In this paper, Lord Phillips reflects on the present state of the law relating to mental health; he considers the place of the common law doctrine of necessity as the basis for the detention of patients; he reviews a number of issues arising from the jurisprudence of the European Court of Human Rights in Strasbourg and a number of recent decisions of the Court of Appeal. Finally, he considers the prospects for change in the law foreshadowed in the Government's White Paper on the Reform of Mental Health Law (2000).     

Ex Pluribus Unum: Fusion of the European Communities into the European Union

Abstract: This article presents the main legal approaches used in constructing the relationships between the TEU, TEC, TEAC and TECSC and the institutions set up by them. It argues that the dominant approaches which separate the European Union from the European Communities run into serious difficulties when explaining the normative framework and the actual practice of the EU institutions. In contrast, the proposed 'unity thesis' asserts that de lege lata the European Union can be considered one entity from the point of view of the organisation, its actions and its law, The article develops in detail the legal premises and some of the consequences of this thesis.     

EU Climate Change Litigation,the Role of the European Courts,and the Importance of Legal Culture

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the European Union can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the European Union raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU's regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, the borders of the EU's environmental regulatory powers. As such, this article shows that attention needs to be given to the interaction between climate change laws and the constitutional role of the EU judiciary. These interactions are considered here together with the contingency of EU climate change litigation on EU legal culture.     

European integration and the french parliament: From ineffectual watchdog to constitutional rehabilitation and an enhanced political role

The development of the European Union is as much an opportunity as a threat to national parliaments. Our case study of the French Parliament suggests that as the process of integration has quickened in pace and broadened in scope, parliament has on successive occasions used the opportunity to strengthen its constitutional position with the introduction of Article 88‐4 and improve its capacity to scrutinise government through the adoption of a series of laws. Parliament now has the power to delay if not block the adoption of measures at European Union level by refusing to lift its scrutiny reserve. It is difficult to determine if parliament has significantly increased its influence over the government on European affairs, but it is now able to adopt potentially politically significant resolutions on all European Union issues which the government takes into account when negotiating in Union institutions. European integration has been a significant factor in the rehabilitation of the French Parliament.     

The economic costs and consequences of mass communications data retention: is the data retention directive a proportionate measure?

This article seeks to determine the economic costs and consequences of implementing the Data Retention Directive (Directive 2006/24/EC), an extraordinary counter terrorism measure that mandates the a priori retention of communications data on every European citizen, by drawing on the insights of economic analysis. It also explores the monetary costs of the Directive on subscribers and communications service providers of Member States within the EU. Furthermore, it examines the implications of the Directive on the economic sector of the European Union, by focusing on the Directive’s impact on EU competitiveness and other EU policies such as the Lisbon Strategy. This analysis is motivated by the following questions: what are the monetary costs of creating and maintaining the proposed database for data retention? What are the effects of these measures on individuals? What obstacles arise for the global competitiveness of EU telecommunications and electronic communications service providers as a result of these measures? Are other policies in the European Union affected by this measure? If so, which ones?     

Chinese Perceptions of the European Union: A Review of Leading Chinese Journals

Abstract:  As a result of the rapid development of EU–China relations, an increasing amount of scholars in China focus their research on the European Union and the nature of the bilateral relationship. As most of them publish their research results in the academic journals in China, it is necessary to have a review of these journals in order to understand Chinese perceptions of the European Union. In order to fulfil this task, this article first briefly examines the Chinese journals to be reviewed, and explains why these journals have been chosen. Via the analysis of the articles published in the leading Chinese journals in the past five years, the article presents how the Chinese perceive the EU and its global role, explores EU–US relations and EU–China relations. By presenting the most up-to-date research on the EU studies in China, the article serves as a timely and meaningful piece to help enhance mutual understanding between the EU and China.     

Of Austerity,Human Rights and International Institutions

Austerity measures have led to the denial of social rights and widespread socio‐economic malaise across Europe. In the case of countries subjected to conditionality imposed by international institutions, the resultant harms have highlighted a range of responsibility gaps. Two legal developments come together to expose these gaps: Greece's argument in a series of cases under the European Social Charter that it was not responsible for the impact on rights brought about by austerity measures as it was only giving effect to its other international obligations as agreed with the Troika; and the concern to emerge from the Pringle case before the European Court of Justice that European Union (EU) institutions could do outside of the EU what they could not do within the EU ‐‐disregard the Charter of Fundamental Rights. That the Commission and the European Central Bank were in time answerable to international organisations set up to provide financial support adds an additional layer of responsibility to consider. Taking Greece as a case study, this article addresses the imperative of having international institutions respect human rights.     

欧洲共同体竞争法实施过程中面临的冲突及对策

竞争法是欧共体法律体系中影响较大的一个部门。它的形成与发展,使共同体内并存着两种相互独立的竞争法及其执行机制。因此,竞争法在实施过程中,出现了一系列的冲突和矛盾。共同体通过二次立法,采取了一系列相应的措施:重新调整竞争法主管机构的权限,平衡竞争法管辖上的矛盾;确立共同体竞争法的效力优于成员国竞争法的原则,协调共同体竞争法适用上的冲突;加强竞争法实施的国际合作,化解欧共体竞争法域外适用过程中产生的困难。这些措施有效地清除了竞争法实施的障碍,推动了欧洲经济一体化的进程。