Constitutionalising EU Executive Rule‐Making Procedures: A Research Agenda

The existence or non‐existence of procedural rules for executive rule‐making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional principles, such as transparency, openness and participatory democracy, highlighted by the Treaty of Lisbon constitute decisive normative standards for the design of administrative procedures in the EU, with a considerable impact on substantive outcomes. We apply such principles to executive rule‐making procedures in the EU, highlight the salience of this discussion and argue that systematisation of executive rule‐making procedures is needed in order to implement constitutional principles in a complex and plural environment.     

In Search of Better Quality of EU Regulations for Prompt Transposition: The Brussels Perspective

Abstract:  Better regulation cannot be achieved without serious attention to transposition. The quality of EU regulation is crucial to ensuring that Community law is promptly transposed into national law within the prescribed deadlines. But good quality transposition (clear, simple, and effective) goes beyond pre-legislative consultation processes and more frequent use of impact assessments as agreed in the 2003 Interinstitutional Agreement on Better Lawmaking. Presenting new data that covers the full population of all EU transport directives from 1995 to 2004—including the national implementing instruments of France, Germany, Greece, Italy, Ireland, Spain, Sweden, the Netherlands and the UK—this study shows that elements of the EU directives delay transposition. The binding time limit for transposition, the EU directive's level of discretion, its level of detail, its nature and further characteristics of the directive's policy-making process are all factors. These determining factors are crucial to explaining why Member States miss deadlines when transposing EU Internal Market directives. Brussels' efforts to simplify and improve the regulatory environment have to go beyond more preventive action to strengthen the enforcement of EU legislation at the member-state level if they want to address the Internal Market constraining effects of Member States' non-compliance. This study argues that far-reaching decisions made in the European Commission's drafting and EU policy-making phase have the greatest effect on the European regulatory framework in which businesses operate and the free movement of goods, persons, services, and capital is at stake. Implementation should be part of the design.     

Assessing the impact of imprisonment on recidivism

Objectives  

There is debate about the extent to which imprisonment deters reoffending. Further, while there is a large literature on the effects of imprisonment, methodologically sound and rigorous studies are the exception due to problematic sample characteristics and study designs. This paper assesses the effect of imprisonment on reoffending relative to a prison diversion program, Community Control, for over 79,000 felons sentenced to state prison and 65,000 offenders sentenced to Community Control between 1994 and 2002 in Florida.     

Assessing the impact of manufacturing extension center

This article summarizes results from the authors' evaluation of the first five years of operation of one of the first MEP centers—the Michigan Manufacturing Technology Center. The evaluation utilizes the Performance Benchmarking Service's proprietary database of quantitative measures of performance in 3000 smaller manufacturing plants. The results suggest that while clients are satisfied with MMTC services, nany of the center's projects are less than effective at achieving desired client outcomes and policy objectives. The article considers the implications of this finding both for program operation and future evaluation approaches.     

Personality under EU Law: A Conceptual Answer towards the Pluralisation of the EU

Although the trend towards pluralisation within the institutional framework of the EU is somewhat reflected in theoretical efforts, legal scholarship's answer remains incomplete. Acknowledging that legal personality is always relative—ie related to a particular legal system—personality under EU Law should be recognised and developed as a distinct category. This allows for reconsideration and rearrangement of inter‐ and intrapersonal relations in EU Law: inter‐institutional agreements can gain firmer legal ground, the recognition of hierarchical structures within the EU executive branch can advance the maintenance of the rule of law, legal protection of the Union's citizens shall be advanced, and options as well as limits to privatising organisation at the EU level shall be formulated. On the whole, methodological self‐reflection along these lines is bound to lead to a valuable contribution of legal research in times of EU crisis.     

The Power of EU Collective Action: The Impact of EU Data Privacy Regulation on US Business Practice

Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra-jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU's large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of 'adequate' data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players – including regulators, businesses, privacy advocates, lawyers and privacy service providers – and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive's extra-jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States' collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under-regulation legitimising EU intervention, and the constraints of supranational trade rules.     

机构投资者投票顾问的法律规制——美国与欧盟的探索及借鉴

投票顾问是20世纪80年代以来资本市场兴起的新型咨询服务机构,其向机构投资者提供所持股公司股东大会投票建议、治理状况评级等服务以营利,部分投票顾问还同时向上市公司提供公司治理咨询服务。投票顾问的影响力随着机构投资者的壮大及相应监管的完善与日俱增,但来自上市公司管理层等利益相关方的批评也从未停止,近10年来更引起立法者与监管者的关注和介入。美国与欧盟的探索实践表明,以适度信息披露和利益冲突防控为导向的公共监管相较于私人执法而言是规制此类机构的更优路径,表现可衡量性弱、诉讼效果不彰影响了民事诉讼的应用,相关经验亦可为我国所借鉴。     

欧盟及其成员国关于遗传资源获取与惠益分享的管制模式——兼谈对我国的启示

在遗传资源获取与惠益分享的管制方面,自《生物多样性公约》生效10余年来各国的履约实践,各国管制遗传资源获取与惠益分享的模式大致公法模式、私法模式和自律模式。而欧盟及其成员国选择了私法模式,反对政府在获取与惠益分享中的过多干预,强调通过利益相关者的自由意志进行调整。欧盟的导向比较灵活、实用、也更符合《公约》的宗旨。在私法调整模式下,由享有处置权的私方所有者时获取遗传资源进行管制,意味着遗传资源的权利所有者可以通过合同式安排自行决定他们对这些资源的利益,以及如何最好地实现这些利益。这样就能更好地实现合同式安排的效率价值。同时,由政府出面鼓励私方主体采取自我约束的行为守则、甚至是在某些情况下直接介入交易活动,为其提供指导、进行协调,可以在一定程度上克服合同方式无法保障公平的内在缺陷。这种重视利益相关者自律的做法,丰富了遗传资源获取与惠益分享管制的类型,对我国有一定的借鉴意义。     

Essential and Non-essential Measures: Delegation of Powers in EU Securities Regulation

This article examines the new regulatory process in the regulation of EU securities markets, as proposed by the Wise Men Committee and welcomed by the Council and the Parliament. The new structure involves inter alia the creation of a 'comitology' committee and recognises two layers of legislation: essential measures that will be enacted through the normal co-decision process on the one hand, and more detailed technical and 'non-essential' measures, which will be decided by the new committee and the Commission, on the other. It is believed that the new structure will respond to the need for speed, efficiency and flexibility in securities regulation. However, the starting point for discussion and the decisive question is how one can distinguish between these two levels of legislative measures. Although the Wise Men Committee does not give sufficient guidance on this issue, it is alleged that the success of the proposed regime will heavily depend on the clear definition and distinction between essential and non-essential measures. The theoretical exercise of this article involves an analysis of the delegation issues arising from the proposal and the identification of some potentially useful guiding principles and criteria derived from primary and secondary Community legislation and case law as well as from inter-institutional agreements. Its ultimate goal is a proposal for the adoption of common principles, criteria and dividing lines at EU level.     

Still in Deficit: Rights,Regulation, and Democracy in the EU1

Abstract: Critics of the EU's democratic deficit standardly attribute the problem to either sociocultural reasons, principally the lack of a demos and public sphere, or institutional factors, notably the lack of electoral accountability because of the limited ability of the European Parliament to legislate and control the executive powers of the Commission and the Council of Ministers. Recently two groups of theorists have argued neither deficit need prove problematic. The first group adopts a rights‐based view of democracy and claims that a European consensus on rights, as represented by the Charter of Fundamental European Rights, can offer the basis of citizen allegiance to EU wide democracy, thereby overcoming the demos deficit. The second group adopts a public‐interest view of democracy and argues that so long as delegated authorities enact policies that are ‘for’ the people, then the absence of institutional forms that facilitate democracy ‘by’ the people are likewise unnecessary—indeed, in certain areas they may be positively harmful. This article argues that both views are normatively and empirically flawed. This is because there is no consensus on rights or the public interest apart from the majority view of a demos secured through parliamentary institutions. To the extent that these remain absent at the EU level, a democratic deficit continues to exist.     

The Better Regulation Initiative at the Judicial Gate: A Trojan Horse within the Commission's Walls or the Way Forward?

While most academic attention is currently being paid to the goals and to the merits of the Better Regulation initiative (BR), this article examines the most immediate legal implications stemming from reliance on the main tools of BR (such as systematic impact analysis and consultation procedures on proposed legislation) within the European legal order. Since the BR package boils down into a set of regulatory requirements, enforcement issues are likely to arise. For instance, what if the Commission omits to undertake (or badly performs) an impact assessment of a legislative proposal? Who is currently in charge of ensuring the Commission's compliance with these requirements? After illustrating the existing administrative oversight mechanisms designed to ensure effective compliance with BR requirements, by focusing notably on the recently established Impact Assessment Board, the article examines to what extent the European courts may be called upon to review the respect paid to the requirements of BR by the Commission services. To prevent the BR initiative from turning into a Trojan Horse within its own walls, the Commission is likely to comply with these regulatory requirements, thereby paving the way for the initiative's success.     

Contract Governance in the EU: Conceptualising the Relationship between Investor Protection Regulation and Private Law

The instrumental use of private law, in particular contract law, by the EU raises a complex issue concerning the relationship between contract‐related regulation and traditional private law and underlines the need for conceptualising the interplay between the two from the contract governance perspective. The present article aims to apply this new analytical approach in the investment services field where there is considerable tension between the EU investor protection regulation embodied in the Markets in Financial Instruments Directive (MiFID I and MiFID II) and national private laws. The article explores various models of relationship between investor protection regulation and traditional private law within a multi‐level EU legal order, considering the strengths and weaknesses of each field in pursuing public and private interests involved in financial contracting. This analysis also offers some lessons for the broader narrative of how European integration in regulated areas dominated by public supervision and enforcement could proceed.     

欧盟REACH法规与GATT／WTO规则的一致性分析

随着REACH法规的实施，与该法规有关的争议将极有可能最终在WTO框架下加以解决。不仅REACH法规体现的保护人类健康和环境的立法理念符合WTO倡导的可持续发展原则，REACH法规与GATT／WTO协议基本原则，如国民待遇原则、贸易障碍最小化原则、透明度原则等也保持了一致，同时，REACH法规也满足了GATT／WTO协议例外规则的要求。有理由相信，REACH法规将会经受住依据GATT／WTO协议提起的质疑。     

Assessing the impact of casino gambling on crime in Mississippi

The introduction of legalized gambling into a community has generated a great deal of hubris regarding concomitant criminality. While Las Vegas has long been synonymous with organized crime, the recent focus has been on the connection between traditional crime and legalized gambling. The conventional wisdom among opponents of this new source of revenue is that casinos attract many undesirables to the community, thereby increasing crime and social disorganization. Routine activities theory would suggest that with increased numbers of tourists, more opportunities for crime will exist. To test this proposition, the frequency of crime before and after the introduction of legalized gambling in Biloxi, Mississippi was examined. Larcey-theft and motor vehicle theft were the only categories of crime to show statistically significant change. Robbery and aggravated assault increased, while murder and rape declined, although the change was not statistically significant for any category of violent crime.     

Reconsidering the Premises of Labour Law: Prolegomena to an EU Regulation on the Protection of Employees' Personal Data

With its 1985 Directive on Data Protection, the European Union highlighted its commitment to the constitutionalisation of European law and, in particular, underlined its vision of the individual European as a rights-bearing individual; empowered through 'knowledge' and thus advantaged in communicative processes of political/social/legal bargaining. As such, the move to a data protection regime founded upon notions of individual empowerment, also mirrors a recent and fundamental re‐alignment in the guiding principles of regulative labour law, which has seen the paradigm of 'collective laissez‐faire' challenged, if not superseded, by a redirected emphasis upon the communicative empowerment of the individual employee rather than the representative function of employees' representatives. Accordingly, it is less than surprising that the field of labour law has seen increasing demands placed upon the Commission to fulfil its promise in the pre-amble to the 1985 Directive, and promulgate Regulations crafted to ensure data protection in line with the specific demands of individual societal sectors. This paper is a policy statement. It re-iterates the need for a Regulation on the protection of employees' data. Building on the comparative experience of the Member States, it outlines the nature, provisions and scope which such a regulation should entail so as to reflect, both the reality of the modern employment relationship, and a new normative vision of the workplace which aims to inject such relationships with a measure of communicative participation.     

Measuring the economic impact of research joint ventures supported by the EU Framework Programme

The objective of this paper is to analyse the effects of international R&D cooperation on firms?? economic performance. Our approach, based on a complete data set with information about Spanish participants in research joint ventures supported by the EU Framework Programme during the period 1995?C2005, establishes a recursive model structure to capture the relationship between R&D cooperation, knowledge generation and economic results, which are measured by labour productivity. In the analysis we take into account that the participation in this specific type of cooperative projects implies a selection process that includes both the self-selection by participants to join the consortia and the selection of projects by the European Commission to award the public aid. Empirical analysis has confirmed that: (1) R&D cooperation has a positive impact on the technological capacity of firms, captured through intangible fixed assets and (2) the technological capacity of firms is positively related to their productivity.     

欧美信用评级监管规则的最新发展

信用评级作为衡量信用风险的法定标准,长期以来在美国和欧盟被广泛适用于金融监管。2007年金融危机爆发以后,美国和欧盟针对信用评级监管制度中的缺陷,进行了一系列的立法改革,初步建立了信用评级监管体系。美国首先通过了信用评级监管法案,欧盟的立法参考借鉴了美国法的一些原则和条款,尽管美国和欧盟的监管规则存在一定的差异与分歧,但未来极有可能趋同化发展。