The Role of EU Internal Policies in Implementing Greenhouse Gas Mitigation Options to Achieve Kyoto Targets

This paper reviews the role of internal European Union (EU) policies and measures in implementing the target for greenhouse gas mitigation in the Kyoto Protocol. It starts with a discussion of the EU Burden Sharing Agreement, which distributes the target between Member States. This leads to a review of the appropriate level of implementation of policies, i.e. at the EU level or Member State level. There is a role for the flexible mechanisms of the Protocol, particularly emission permit trading, in complementing Member State policies at the EU level. The implementation is to be done against the background of three major factors which may have an important bearing on the policies: the probable long-term requirement of substantial reductions in greenhouse gas emissions a changing structure of energy markets, following liberalisation of the gas and electricity markets EU enlargement to include economies in transition with the potential for further substantial reductions in emissions.The paper concludes with a discussion of ancillary benefits of the policies that may be substantial and a summary of the position as regards the "unfinished business" of the Protocol to be discussed at the Conference of the Parties in the Hague in November 2000.     

REFLECTIONS ON EU INTERNATIONAL TRADE LAW: AN INTROSPECTIVE VIEW

This article presents three main arguments: First, shared competence exists between the national and supranational levels within the European Union (EU) because EU Member States do not trust the European Commission in the external relations law of the EU. Second, the EU will have greater bargaining power in international negotiations if it speaks in a single voice. Within the EU-27, we have compatible values, overlapping interests, shared goals, as well as economic, social and political ties. Therefore, there is a presumption of collective action in the EU’s external relations. However, EU Member States disagree on many issues before they start negotiations, while trying to define a mission together as partners of the European project. Third, Member States confer specific negotiating powers on the EU only when it is in their own national interest to have a common European position on international negotiations.     

Rules for Rights: European Law,Health Care and Social Citizenship

Social citizenship is about equality. The obvious problem for European social citizenship in a very diverse Union is that Member States will not be able or willing to bear the cost of establishing equal rights to health care and similar aspects of social citizenship. Health care is a particularly good case of this tension between EU citizenship and Member State diversity. The European Court of Justice (ECJ) strengthened the right to health care in other Member States, but this cannot create an equal right to health care when Member States are so different. In its efforts to balance a European right, the Court has formulated ‘rules for rights’—not so much European social citizenship rights, as a set of legal principles by which it judges the decisions of the Member States.     

Credible Commitment in Non-Independent Regulatory Agencies: A Comparative Analysis of the European Agencies for Pharmaceuticals and Foodstuffs

Abstract: The creation of more and more supranational regulatory agencies has been one of the most significant institutional developments in the European Union during the last decade. Usually, these agencies evolve from EU committees and take over most of their structures. Accordingly, like most EU committees and the Commission, regulatory agencies are not independent, but act under the control of the member states. The question is, how far do they indicate a credible commitment of the Member States to long-term policy goals like health and consumer protection. This article compares the institutional structures and decision-making rules of the European Agency for the Evaluation of Medicinal Products and of the newly established European Food Safety Authority, in order to clarify the extent of credible commitment that the Member States show through the setting-up of these agencies. It concludes that the commitment of the Member States in the foodstuff sector is not as deep as in the pharmaceutical sector, and that the creation of the European Food Safety Authority will not lead to a success story similar to that of the European Agency for the Evaluation of Medicinal Products.     

Balancing Between Human Rights Assumptions and Actual Fundamental Human Rights Safeguards in Building an Area of Freedom,Security and Justice: a Cosmopolitan Perspective

Rhetoric often claims that the European Union (EU), in issues related to Justice and Home Affairs, has to be united in its diversity. As such, the asylum and judicial systems of the Member States are initially perceived as equally good. By applying the cosmopolitan theory on two fields of interstate cooperation, asylum and judicial cooperation in criminal matters, the article explores how cosmopolitan the EU is in these fields, with a specific focus on material detention conditions. For cosmopolitanism to work, it has to be grounded in commonly shared norms, which enable the EU to regulate its dealings with the otherness of the Member States. The crucial role of the European Court of Human Rights and the Court of Justice of the European Union in placing boundaries on the equal goodness of the Member States’ asylum and judicial systems is analysed. This judicial reality in which cosmopolitan norms are established and protected is discussed, together with the political realities dominating policy debates in order to build an Area of Freedom, Security and Justice.     

The Constitution of a European Democracy and the Role of the Nation State

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro-democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community.     

Smuggling of Migrants, Trafficking in Human Beings and Irregular Migration on a Comparative Perspective

Abstract:  The European Union aims to develop a European criminal justice to combat cross-border crimes of smuggling of migrants and trafficking in human beings. This article focuses its attention on European Community/European Union (EC/EU) law and on two Member States, Italy and the United Kingdom (UK). The findings show that there are diversities and ambiguities in the definition of irregular migration. On the contrary, the EU and Member States should concentrate their efforts on the two crimes of smuggling of migrants and trafficking in human beings rather than criminalising irregular migration.     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?

The number of international law obligations that have binding force on the Union and/or its Member States is sharply increasing. This paper argues that in this light the well‐functioning of the European Union ultimately depends on the protection of the principle of supremacy from law originating outside of the EU legal order. The supremacy of EU law is essential to ensuring that Member States cannot use national rules to justify derogation from EU law. As a matter of principle, international treaties concluded by the Member States rank at the level of ordinary national law within the European legal order and below all forms of European law (both primary and secondary). Article 351 TFEU exceptionally allows Member States to derogate from primary EU law in order to comply with obligations under anterior international agreements. It does not however allow a departure from the principle of supremacy that underlies the European legal order. In Kadi I, the Court of Justice of the European Union stated that Article 351 TFEU, while it permits derogation from primary law, may under no circumstances permit circumvention of the “very foundations” of the EU legal order. This introduces an additional condition that all acts within the sphere of EU law need to comply with a form of “super‐supreme law”. It also strengthened the principle of supremacy and gave the Court of Justice the role of the guardian of the Union's “foundations”. The Court of Justice acted on the necessity of defending the Union as a distinct legal order, retaining the autonomous interpretation of its own law, and ultimately ensuring that the Union can act as an independent actor on the international plane.     

An American Looks at the European Union

Abstract: Anyone who has followed the evolution of six European nations from a simple Coal and Steel Community to the current twenty‐five Member State European Union (EU), has witnessed a truly remarkable passage. Nonetheless, the EU remains a decidedly jerrybuilt affair. Through numerous enlargements, increased competences, changes in structure and operation, the Union has been bedevilled by the fact that it is neither a simple international treaty with 25 signatories, nor a truly federal union. Rather, the EU has operated, sometimes effectively, often shakily, between these two extremes; exhibiting a sort of ‘fear of federalism’. From a US perspective, this article looks at the present state of the European Union and asks why it has met its potential in some ways, but has fallen so far short in others. Obviously, the tension between the Member States and the Community institutions is one reason. The article asks why do the states compete so much with one another, when their true competition is often with non‐European entities? Why does the European Council never seem to act in a timely manner? Why do euro‐citizens have so poor of an appreciation of what the Community does for them? Why does the Common Agricultural Policy, which contributes such a small amount to European gross domestic product, so dominate the EU budget and agenda? Can the euro, clearly the world's second currency after the US dollar, ever win over its doubters and harmonise European financial service markets? Does enlargement improve or threaten the future of the Community? And can its Common Foreign and Security Policy ever be successful if it is forced to compete with parallel politics in the Member States? All of these questions are addressed in this article with the hope that, through an external critique, the EU will live up to its potential both at home and abroad.     

1968 Brussels Convention and EU Council Regulation No 44/2001: Jurisdiction in Consumer Contracts Concluded Online

Abstract: This paper addresses the issues on jurisdiction over consumer contracts concluded online in the Member States of the European Union through analysis of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which has been transformed into the Regulation recently. The changes brought by the Regulation to the régime of jurisdiction over consumer contracts in the European Union include the concept of the company ‘directing its activities towards particular Member State or States’ as a ground for a consumer to sue such a company in the country of his domicile. Since the list of criteria that could define the activity as directed to the particular Member State does not exist so far, the future effect of the Regulation remains unclear.     

National autonomy and democratic standardization: Should popular votes on European integration be regulated by the European Union?

Given the increasing use of direct democratic devices on questions of European integration, this paper explores whether or not Member States may have good reason to agree on common regulations for popular votes of this nature. Conceiving of the European Union as a political system designed to serve the interests of states and citizens, it is argued that where direct votes have the potential to undermine the territorial, functional, normative or existential integrity of the EU, then states may have good reason to sacrifice a degree of national autonomy to adopt common regulations for certain uses of direct democracy. This leads to a case for democratic standardization across Member States when it comes to withdrawal, accession, Treaty ratification and opt‐in decisions.     

Minors and informed consent: a comparative approach

The European Convention on Human Rights and Biomedicine of the Council of Europe provides in article 6 for special protection of persons who are not able to give free and informed consent to an intervention in the health field, e.g. minors. According to the second paragraph of this article it is up to domestic law to decide whether and under which conditions a minor is capable of taking autonomous decisions in the health field. In the present article an overview is given of the legal regulations in place regarding the position of minors in a health care setting in the EU Member States that have ratified the European Convention on Human Rights and Biomedicine namely Cyprus, Czech Republic, Denmark, Estonia, Greece, Hungary, Lithuania, Portugal, Slovakia, Slovenia and Spain. As the overview will show, the legal position of minor patients in a health care setting varies from country to country. This in view of the system they have opted for as well as the age and circumstances under which minors are allowed to take health care decisions autonomously.     

Intergovernmental Conference 1996: Which Constitution For The Union?

Abstract: This paper addresses the five major structural issues on the agenda of the 1996 Intergovernmental Conference of the Member States of the European Union: the option of replacing the treaty framework by a European constitution; the issue of fundamental rights in the Union; the future of the three-pillar structure; the puzzling question of how to allow for variations in European integration without endangering unity; and, finally, the political 'evergreen' of the division of competences between the Union and its Member States. The analysis is based on contributions by EC institutions and prominent groups of experts and scholars published before the political bargaining started.     

The Islamic Headscarf: An Example of Surmountable Conflict between Sharî'a and the Fundamental Principles of Europe1

Abstract: The demand by certain Muslims living in Europe to wear the Islamic headscarf has led to important cases, before the courts of the Member States of the Union as much as before the European Court of Human Rights, above all with regard to public education. The Court of Human Rights and the Member States have taken different positions concerning the licitness of wearing the headscarf. The solutions adopted are, in fact, strongly influenced by the classical concept of relations between Church and State. In schools in Germany, where a relationship of cooperation exists between Church and State, the wearing of the veil is allowed, but only for the pupils, not for their teachers. In France, which has a model of strict separation between Church and State, neither teachers nor pupils are allowed to wear the veil. The tensions linked to wearing of the headscarf are but one example of conflict between sharî'a and the fundamental principles of Europe. These conflicts are not insurmountable. However, they do require efforts from both sides. The EU and the Member States must break with discriminatory practices against Muslims. The Muslims of Europe must construct a ‘European Islam’, re‐reading sacred texts in light of the characteristics and the values of the European societies in which they live.     

The European Community and the Member States in the Dispute Settlement Understanding of the WTO: United or Divided?

Opinion 1/94 of the European Court of Justice determined the competence of the European Community and the Member States to conclude and implement WTO Agreements. Whilst the European Community enjoys exclusive competence to implement the Multilateral Agreements on Trade in Goods, it shares joint competence with the Member States in respect of the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights. However, the Court’s recognition of a division of competences between the Community and the Member States in WTO agreements has given rise to many fears that such a division would greatly complicate Community and Member State participation in WTO Agreements, would create many problems for them in doing so and, as a result, would greatly impede their successful participation in the WTO. Given the benefit of a number of years’ experience in the WTO, this paper focuses on the Dispute Settlement Understanding (DSU) of the WTO and addresses the extent to which the division of competences between the Community and the Member States has affected their participation in the DSU. Primarily, it aims to examine the extent to which the provisions of the DSU affect Community and Member State participation in dispute settlement within the WTO. It then analyses the duty of co-operation imposed on the Community and on Member States by the Court of Justice in Opinion 1/94 in the implementation of the WTO Agreements and the degree to which this duty influences their pursuit of dispute settlement. Finally, the paper examines the manner in which Community and Member State dispute settlement proceedings have evolved in practice, the extent to which the division of powers has penetrated dispute settlement proceedings and the manner in which the Community, the Member States and other WTO members have addressed it. In essence, the paper attempts both to highlight some of the more obvious consequences and effects that the internal division of powers between the Community and the Member States has for their participation in the DSU and to suggest some ways in which these consequences may be manipulated for their mutual and successful settlement of disputes.     

Free movement of law students and lawyers in the EU: a comparison of English,German and Greek legislation

This article focuses on the linked themes of mobility within the European Union for law students and for lawyers. It highlights obstacles to cross-border legal education and legal practice across three Member States: England and Wales, Germany, and Greece. The European legal framework is outlined. The implications of recent case law of the European Court of Justice, on the conditions of access to higher education and financial support, are considered. Three main areas of concern are identified: admission arrangements; student finance; and the professional recognition of qualifications. The article compares the approach of the three Member States in each of these areas and explores conflicts between their domestic law provisions and European Union law. The article concludes by identifying ways in which ‘Europeanisation’ of legal education and the legal profession could be encouraged by facilitating law student mobility and by modernising the law curriculum.     

Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from Here?

This article tries to provide an overview of current criminal, civil and administrative protection order legislation in the 27 European Member States by comparing five studies that have (laterally) touched upon this topic. Although the data are sometimes questionable and, on occasion, even contradictory, the general picture emerges that there is a huge variation in levels of victim protection across the EU. In some Member States there are considerable gaps in victim protection legislation, for example, because there is no (pre-trial or post-trial) protection in criminal proceedings or because civil protection orders and/or barring orders are not available. If we agree that in the light of today??s emphasis on victim protection the current gaps in protection order legislation can no longer be accepted, a strategy needs to be devised on how to solve this problem. It was argued that the European Union could play an important part in addressing the protective vacuum, first by supporting thorough research into the current status of protection order legislation and implementation in the 27 Member States, and second by further exploring certain ??soft law?? possibilities such as co-regulation or the open method of coordination.     

EU Citizenship and Political Identity: The Demos and Telos Problems

Citizenship is the cornerstone of a democratic polity. It has three dimensions: legal, civic and affiliative. Citizens constitute the polity's demos, which often coincides with a nation. European Union (EU) citizenship was introduced to enhance ‘European identity’ (Europeans’ sense of belonging to their political community). Yet such citizenship faces at least two problems. First: Is there a European demos? If so, what is the status of peoples (nations, demoi) in the Member States? The original European project aimed at ‘an ever closer union among the peoples of Europe.’ Second: Citizens are members of a political community; to what kind of polity do EU citizens belong? Does the EU substitute Member States, assume them or coexist alongside them? After an analytical exposition of the demos and telos problems, I will argue for a normative self‐understanding of the EU polity and citizenship, neither in national nor in federal but in analogical terms.     

Supranational Fundamental Rights or Primacy of Sovereignty?

This analysis explores in detail various aspects of the possible legal impact of ‘British’ Protocol No 30 (the so‐called opt‐out from the EU Charter of Fundamental Rights). On the basis of a legal appraisal, it concludes that the Protocol is not in any way to be understood as a substantial derogation from the standard of protection of fundamental rights in the EU or as an ‘opt‐out’ from the Charter in a substantial sense. Nevertheless, its significance is definitely not to be underestimated. Its adoption as a source of primary law enshrines a legally binding interpretation of the Charter and, in particular, an interpretation of its horizontal provisions. In Article 1(2) and Article 2, the Protocol in fact confirms that the application of the Charter cannot lead to a change in the existing competencies framework. These provisions are of a declaratory nature and apply to all Member States. In Article 1(1), the Protocol is of a constitutive nature since it rules out an extensive interpretation of what can be considered national legal acts adopted in the implementation of EU law only for those States signed up to the Protocol. This specifically means that if, in the future, as part of the application of the Charter, the Court of Justice of the EU (ECJ) has a tendency to subsume a certain area of national legislation under the ‘implementation of Union law’ outside the field of implementing standards, in the spirit of the Ellinki Radiophonia Tileorassi judgment (and subsequently allow their reviewability with respect to their conformity with the Charter), such action would be admissible only for those Member States that have not acceded to the Protocol. However, the Protocol cannot exclude the continued application of the general principles of law instead of the positively constituted fundamental rights in the Charter by the ECJ.