Employee Rights on Transfer of Undertakings: Italian Legislation and EC Law

Abstract:  The authors examine the conformity with Community law of the recent regulatory changes introduced to the Italian legal system regarding the safeguarding of employees' rights during transfers of undertakings. The investigation takes place on the assumption that the principle of primacy of Community law applies, which first and foremost means that it must be verified whether the domestic legislation in question complies with the interpretation given to the relative provisions of Community law. According to the authors' opinion, domestic law could be judged as non-conforming to the interpretation that has been given by the Court of Justice, so that the question may be brought before the Court of Justice ex Article 226 EC or by recourse to the preliminary ruling procedure under Article 234 EC, which reveal cases of incorrect implementation of the Directive.     

Judicial Review of European Anti-Terrorism Measures—The Yusuf and Kadi Judgments of the Court of First Instance

Abstract:  In the Yusuf and Kadi judgments of 21 September 2005, the Court of First Instance endorsed the Community practice of sanctioning individuals blacklisted by the United Nations (UN). It accepted that the Community uses its competence to adopt state sanctions in combination with Article 308 EC to freeze the assets of civil persons, including European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether jus cogens was violated. The Court of First Instance's decisions can be criticised on various grounds. First, the application of these Articles is contrary to the wording of the Treaty and the case-law of the European Court of Justice (ECJ). Further, as a consequence of the Court of First Instance's judgments, decisions of the UN Sanctions Committee become the supreme law within the EU, provided they meet the requirements of jus cogens as defined by the Court of First Instance. In addition, the individual is deprived of all fundamental rights guaranteed under European law.     

Buy baby: the European Union and regulation of human reproduction

In its decision in ex parte Blood the Court of Appeal relied on European Community (EC) law to hold that the Human Fertilization and Embryology Authority had acted unlawfully in taking its decision to prevent Mrs Blood from exporting sperm taken from her dying husband without his written consent. The Blood case raises the issue of the extent to which EC law may affect the regulation of human reproduction in the Member States. Responding to fears that such national regulation might be 'swept away' by the commodifying nature of EC law, this article considers the scope of the potential application of EC law to regulation of human reproduction. The cautious conclusion is that, while there may be some increase in deregulatory pressures, the 'vertical relationship' of supreme EC law to national law may turn out to be less significant than 'horizontal relationships' between policy-makers within and between the EU and its Member States.     

Towards European Procedural Primacy in National Legal Systems

Abstract: In the polycentric judicial architecture of the Community, there is a rich, constant interplay between national procedural rules and European interventions. In the making of the European legal order, EC law depends on national procedural law and therefore, substantive EC supremacy depends, existentially, on procedure. In this context, the author argues that the traditional sharply defined dichotomy of national procedural autonomy versus Community law effectiveness no longer reflects the implicit course of action laid down by the Court of Justice. Instead, the European legal order has moved, as a praxis, from national procedural autonomy to a more subtle combination of national procedural competence and European procedural primacy. The rationale behind this trend testifies both to the importance of the interrelationship between procedure and substantive law in the making of Europe and to the flexibility of procedural law; EC law depends on procedural law and procedure readily submits to the demands of a new legal order. In doing so, it also creates new choices and venues for European supremacy.     

Affirmative Action in Women's Employment: Lessons from Canada

The use of affirmative action to increase women's representation in employment is recognized under European Community law. The European Court of Justice has identified affirmative action permissible under EC law and what constitutes reverse discrimination, deemed incompatible with the equal treatment principle. Despite these developments, gendered occupational segregation — vertical and horizontal — persists in all member states as evidenced by enduring pay gaps. It is widely argued that we now need national measures which take advantage of the appropriate framework and requisite political will which exists at the European level. Faced with a similar challenge, the Canadian government passed the Employment Equity Act 1986 which places an obligation on federal employers to implement employment equity (affirmative action) by proactive means. Although subject to some criticism, there have been some improvements in women's representation since its introduction. This article assesses what lessons might be learned from Canada's experience.     

Death penalty politics and symbolic law in Russia

In contemporary Russia there is widespread support for the death penalty. Recent Russian presidents have endorsed the nation’s entry into the European Community (EC). The dilemma is that the price of membership into the EC is total abolition of capital punishment. The Russian Duma is much less popular than the president, even though it sides with public opinion in supporting capital punishment. Since 1997, these conflicting political positions have been temporarily neutralized by leaving capital punishment legislation in place but allowing the Russian president to offer clemency to all sentenced to death. In 1999, the Constitutional Court of Russia placed a moratorium on all death sentences until jury trials are re-introduced throughout the nation.     

Towards a liberalisation of standing conditions for individuals seeking judicial review of Community acts: Jégo-Quéré et Cie SA v Commission and Unión de Pequeños Agricultores v Council

The concept of ‘individual concern’, the main admissibility requirement for actions brought by individual applicants for the annulment of Community acts not addressed to them under Article 130 EC, has traditionally been interpreted restrictively by the Community courts, thereby constituting a nearly insurmountable obstacle for individual seeking judicial review of Community acts of general application. In a recent decision, the CFI, referring to the newly adopted EU Charter of Fundamental Rights (Article 47 on the right to an effective judicial remedy), proposed a new and more liberal interpretation of that requirement, thereby widening access to judicial review for individual, companies and representative groups. The Court of Justice has not followed up, but seems to leave the door open for further developments towards a liberalisation of standing conditions.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

Motive Unmasked: The European Court of Justice, the Free Movement of Goods, and the Search for Legitimacy

Abstract: In exempting from scrutiny under Article 30 EC certain measures constituting 'selling arrangements', the author examines whether the European Court of Justice in Keck and Mithouard and its progeny sought more than mere clarification of its jurisprudence on the free movement of goods. To wit, he claims that the Court was motivated by a sense of waning faith in its institutional legitimacy, initiating in Keck an attempt to more vigorously police the Community-Member State jurisdictional divide in favour of Member State prerogatives, banishing the Community judicial and legislative branches from the realm of 'selling arrangements'. After critical assessment of this hypothesis and of the Court's success, a final section queries whether the ECJ has adopted similar strategies in the Competition law and services realms.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Convergence in the Dutch Health Insurance: Possibilities and Obstacles in a European Perspective

Convergence in Dutch Health Insurance presents possibilities and obstacles considered from a European perspective. The idea is to converge the two existing systems of social and private health insurance. Private health insurers will be obliged to offer a minimum level of health insurance cover based on community rating. In this article consequences of the EC Treaty are in focus. Extensive convergence can be legally allowed in the interests of the common good. The European Court of Justice plays a decisive role in deciding whether convergence is approved according to the rules of the EC Treaty.     

Implementing Community obligations in the realms of intellectual property

Legal context. The various Acts of Parliament governing UK intellectualproperty law have been significantly amended to give effectto Community law. This article discusses the powers used bythe Secretary of State to implement Community obligations andthe Court of Appeal's recent clarification of the scope of thosepowers. Key points. This article describes the concerns expressed bysome commentators on the scope of the powers under the EuropeanCommunities Act 1972 and the key cases on that scope, includingOakley v Animal. The article uses the implementation of performers'moral rights as an example of where going beyond strict Communityobligations is necessary. Practical significance. The article will be useful to anyoneconsidering the validity of the changes made to domestic law,including amendments to primary legislation, to implement Directivesor other Community obligations.     

平行进口和欧洲共同体条约第81条的关系

平行进口是欧洲法院面临的一个棘手问题 ,欧洲共同体各成员国国内知识产权立法上的差异导致商品自由流动出现障碍 ,知识产权人利用国内立法通过协议或采取统一行为限制知识产权产品进入特定的市场 ,保护自己的利益 ,减少商业风险 ,避免竞争 ,实际上分割了市场 ,导致了包含在商品中的权利用尽。商品必须处于自由流通的状态 ,任何阻碍商品自由流动 ,影响成员国贸易的行为都是违反欧洲共同体条约第 81条的反竞争行为     

Trade mark damages for infringement in multiple jurisdictions: a German court rules

A recent decision of the Higher Regional Court of Hamburg inGermany provides useful guidance as to which law applies whentrade mark infringements are committed in several EU memberstates; the Court found an effective and workable solution thatenhances Community Trade Mark Regulation enforcement and strengthensits unitary character throughout the Community.     

Looking for Coherence within the European Community*

Abstract: This paper discusses the relationship between the idea of coherence and the legal order set up by the European Community. It focuses on a specific dimension of this relationship and shows how the appeals to coherence made by the European Court of Justice have shaped a particular branch of the European legal order, namely, the judicial review of Community acts. The analysis of the Court of Justice's case law in this field shows that in its extensive use of coherence the Court of Justice explored and brought into play different types of coherence and, while it failed to distinguish between them, it made use of sorts of coherence that thus far legal theorists have disregarded. The article concludes that a closer collaboration between legal theory and legal practice would be profitable for both legal theorists and Community law specialists.     

Resolving Incompatibilities of Bilateral Investment Treaties of the EU Member States with the EC Treaty: Individual and Collective Options

Bilateral Investment Treaties (BITs) concluded by the EU Member States contain substantially similar clauses, including free movement of capital and investor‐to‐state dispute resolution. Article 307 EC provides for the primacy of pre‐accession treaties over the EC Treaty and simultaneously requires the Member States to eliminate their mutual incompatibilities. The European Court of Justice has declared that free movement of capital clauses of Austrian and Swedish pre‐accession extra‐EU BITs are incompatible with the EC Treaty as they will impede any restrictions on the movement of capital imposed as future Community legislation. A similar ‘free movement of capital’ clause is present in all extra‐EU BITs of the Member States, whether pre‐ or post‐accession. Article 307, however, does not apply to the post‐accession treaties which are equally capable of contriving the same consequences of impeding the application of the EC Treaty. In addition, the application of intra‐EU BITs provides investors from BIT party states access to the investor‐to‐state dispute resolution which is not available to investors from the Member States who do not have BITs with those Member States. This is discrimination and may distort the principle of equal treatment within the EU. Furthermore, the newly acceding EU States are facing extensive arbitral claims for carrying out the BIT‐EU conflicting obligations within their respective territories.     

A Paradox in the Making: Detecting Something Positive in UPA Under the Ten Kate Effect

Abstract:  The European Court of Justice has persisted in adopting an unduly restrictive interpretation of Article 230(4) EC and that persistence has reached its apogee in the UPA decision, while at the same time it was mirrored in the relevant provisions of the draft Constitution. Therefore, it is surprising to see that in the aftermath of UPA , there can be something positive that can be explored further and that can be tested in order to establish whether any indirect, alas limited, liberalisation of the standing criteria is possible. The Ten Kate case established that, in principle, a Member State could be under an obligation under domestic law to challenge the validity of Community legislation. If the state, in all of its different manifestations, fails to challenge the validity of a Community measure when such an obligation arises under municipal law, then the citizen could be in a position to claim compensation. Therefore, the case introduces the doctrine of state liability and the agency analogy (with the state representing the individual or as parens patriae) as connected paths trying to circumvent the standing restrictions. The advantage is that the proceedings would take place under national law and would be detached from the Plaumann conditions. It is proposed that constitutionally entrenched human rights, like effective judicial protection, combined with the principle of legitimate expectation, could create the legal basis for an obligation of the state under national law to challenge the validity of Community norms. The paradox is that effective judicial protection was the exact argument that the European Court of Justice sidelined in UPA .     

Entrapment between Two Pillars: The European Court of Justice Rulings in Criminal Law

Abstract:  This article deals with the possibility of adopting criminal law provisions on a first pillar legal basis. The analysis focuses on two decisions of the European Court of Justice (ECJ) dealing with the matter, with specific emphasis on the second one. The main problems debated are the legality principle, the implicit competence of the Community legislator, the criteria for establishing when there is a need for adopting criminal law provisions on an EC legal basis and the scope and depth of this competence. Comparing the arguments of the Advocate General with the ECJ's approach to the matter, the author tries to establish whether the right decision has been adopted and what the solutions for the future are.     

Poland's legal integration into the European community: Some past,present, and future dilemmas

The paper contains some thoughts on the issue of the legal aspects of Poland's integration into the European Community (EC) against the background of Polish efforts to adapt its legal system to European Community requirements. The discussion is divided into three substantive parts: The first part deals with the issue of various legal traditions constituting the general phenomenon of EC law, with the second part spelling out legal aspects of the process of European integration, and finally the paper will be presented by way of a more concrete discussion — e.g., human rights, criminal law in general, and computer crime specifically.     

Health and Efficiency: Community Law and National Health Systems in the Light of Müller-Fauré

In Müller-Fauré the Court of Justice has made clear that restricting patients to receiving medical services from their domestic health systems is often contrary to EC Treaty rules on the free movement of services, particularly where the treatment is not in-patient. The patient should generally be able to go abroad for treatment at the expense of their national health authority. This has structural and financial repercussions for health care systems in several Member States, including the United Kingdom, whose systems are premised upon captive patients. It also has broader implications for welfare harmonisation and provision in the European Union. Exceptions are possible, where the implications for the national health system would be very serious, but Müller-Fauré indicates that the Court will not allow national courts or authorities to rely on these too freely.