Restriction of Hazardous Substances: On the Need for and the Limits of Comitology

This article demonstrates the need for and the limits of the so-called comitology procedure in the area of European waste legislation, using the example of Directive 2002/95/ EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (the RoHS Directive). The RoHS Directive prohibits the use of six hazardous substances in certain electrical and electronic equipment. The Annex to the RoHS Directive, which contains the exemptions from this prohibition, can be amended through the comitology procedure. This procedure is a widely used method in European Community law for the delegation of legislative power from the Council and the European Parliament to the executive branch, i.e. the European Commission. The authors conclude that the use of comitology is indispensable for highly technical issues for which the co-legislators are lacking the time, as well as the resources, to carry out the adaptation of the legislative acts. However, the Commission needs to handle comitology with care; otherwise it runs the risk that its decisions lack legitimacy.     

Regulating webcasting: An analysis of the Audiovisual Media Services Directive and the current broadcasting law in the UK

Webcasting is an emerging industry, which steadily gains significance as technology enables efficient delivery of video content via Internet. The regulation of webcasting is a topic worthy of debate: Regulating webcasting heavy-handedly may result in stifled innovation whereas not imposing any regulation carries the danger of an un-level playing field between webcasters and stringently regulated broadcasters. In the wake of the Audiovisual Media Services (AVMS) Directive's adoption, the debate has inevitably come to the attention of national regulators of EU Member States, and will remain on OFCOM's agenda until the Directive's implementation into UK law is completed. This article provides an analysis of both the AVMS Directive and the current UK broadcasting law as regards to its applicability to Internet-based services in order to identify UK's current standing prior to implementation; discusses the role of alternatives to state regulation (self- and co-regulation) in the implementation process and finally addresses the DCMS Public Consultation on the Implementation of AVMS Directive revealing the government's plan for the implementation.     

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.     

Restricting the import of ‘emission credits’ in the EU: a power struggle between states and institutions

This article examines the development of a cap on the use of so-called ‘project credits’ in the EU emissions trading scheme. It investigates how the issue of such a limit was addressed in the negotiations of the Linking Directive, and how it has been dealt with in the later implementation of this directive. The article applies two explanatory approaches: one based on intergovernmentalist theory, assuming that the cap reflected the preferences of the EU Member States; and one based on the multi-level governance model, assuming that the cap expressed the preferences of EU institutions rather than Member States. What is found is a two-stage development: during the negotiations of the Linking Directive, Member States managed to secure a no-cap solution allowing extensive use of the project credits. In the later implementation phase, however, when the emissions trading scheme was up and running and a certain legitimacy for the system had been established, the Commission managed to ‘regain control’ by bringing back a cap. Thus, the project credit cap—and by that, the very nature of the EU emissions trading scheme—has been the subject of a continuing power struggle within the EU—and different theoretical perspectives explain different stages of this process.     

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?     

欧盟电子废弃物指令适用范围探析

欧盟的电子废弃物指令(包括WEEE指令和RoHS指令)是目前影响范围最广、适用电子电气设备种类最多的电子废弃物管理法,不论从对欧贸易的角度来说,还是从我国自身立法的角度来看,都应对其认真研究.目前,国内对这两个指令的研究已经展开,但是对其适用范围尚缺乏系统深入的探究,本文准备弥补这一空白.     

An inquiry into the legal status of the ECOWAS cybercrime directive and the implications of its obligations for member states

On 19 August 2011, the ECOWAS Council of Ministers adopted Directive C/DIR.1/08/11 on Fighting Cybercrime at its Sixty Sixth Ordinary Session in Abuja, Nigeria. The adoption of the Directive at that time arose from the need to tackle the growing trend in cybercrime within the ECOWAS region, as some Member States were already gaining global notoriety as major sources of email scams and Internet fraud. Accordingly, the Directive established a legal framework for the control of cybercrime within the ECOWAS region, and also imposed obligations on Member States to establish the necessary legislative, regulatory and administrative measures to tackle cybercrime. In particular, the Directive required Member States to implement those obligations “not later than 1st January, 2014″. This article undertakes an inquiry into the legal status of the Directive as an ECOWAS regional instrument in the domestic legal systems of Member States.In this regard, the article examines whether the requirement regarding the superiority or direct applicability of ECOWAS Community laws such as ECOWAS Acts and Regulations in the domestic legal systems of Member States also apply to ECOWAS Directives such as the Cybercrime Directive. The article also examines the legal implications of the Directive's obligations for Member States. The article argues that while some Member States have not implemented the obligations under the Directive, that those obligations however provide a legal basis for holding Member States accountable, where the failure to implement has encouraged the perpetration of cybercrime that infringed fundamental rights guaranteed under human right instruments such as the African Charter on Human and Peoples’ Rights or under their national laws.     

The Norwegian Barents Sea Management Plan and the EC Marine Strategy Directive: Some Political and Legal Challenges with an Ecosystem-Based Approach to the Protection of the European Marine Environment

This article addresses some of the implications of the EU's proposed Marine Strategy Directive for ongoing work in the regional seas conventions and for national work on regional marine strategies. The starting point is the proposed directive's focus on the ecosystem approach to the protection of the marine environment. Key elements within this approach are analysed, such as integration of environmental considerations into other policy areas; introduction of ecological quality objectives; and establishment of holistic monitoring and assessment programmes. Is it possible to transform these concepts into legally binding obligations? What will the implications of the proposed directive be for the rights and obligations of EU Member States under international law? A Management Plan for the Norwegian Part of the Barents Sea ('Barents Plan') was adopted by the Norwegian Government in March 2006 and approved by the Norwegian Storting (Parliament) in June 2006. It provides an example of a concrete application of the concepts in the proposed directive. Based on an analysis of the proposed Marine Strategy Directive and the Barents Plan, some key political and legal challenges are discussed in this article.     

Civic Citizenship Reintroduced? The Long‐Term Residence Directive as a Post‐National Form of Membership

This paper presents how the Long‐Term Residence Directive has created a status that can be considered as a subsidiary form of EU citizenship. This key revolution has been operated by EU law since this status escapes direct control by Member States that are obliged to grant EU long‐term residence and the rights associated with it to third‐country nationals (TCNs) fulfilling the conditions in the Directive. This represents a fundamental development and may be distinguished from the acquisition by TCNs of national/EU citizenship, which constitutes a prerogative of State sovereignty. Indeed, the recent cases by the Court of Justice analysed below confirm this truly post‐national form of membership and have profound implications for the relationship between borders, territory and population in the EU.     

Implementing EU emissions trading: success or failure?

This article assesses and explains the implementation of the EU emissions trading scheme (EU ETS). It argues that implementation in terms of ambitiousness has been only moderately successful so far, but significant differences between the Member States are also observed. Similarities and differences are then explained within a multi-level governance approach emphasizing the need to search for explanations at national, EU, and global levels. The EU ETS case shows that the multi-level governance approach can be as relevant for understanding implementation as for explaining policy-making. In addition to factors located at the national level, the decentralized nature of the EU scheme itself is important for understanding how the system works in practice. At the global level, the link to the Clean Development Mechanism under the Kyoto Protocol is particularly important for determining how well the EU ETS will perform in the future.     

Misconceiving ‘seasons’ in global food systems: The case of the EU Seasonal Workers Directive

This article discusses the EU Seasonal Workers Directive alongside case study data of seasonal agricultural work in Spain. The conceptual contribution is to critically consider ‘seasonality’ and the related assumptions around temporary labour migration for agricultural work. This consideration informs an analysis of the Directive's policy approach alongside its three global objectives. It is argued that this Directive is likely to fail to meet all three of these objectives; the assumed timeframe for labour demands does not correspond with unmet seasonal challenges; the lack of options for undocumented workers already in the EU may compound their marginalisation; the policy approach of circular migration and limited worker protections does not do enough to prevent new seasonal workers from falling into situations of vulnerability and undocumented status.     

The EU Directive on Electronic Signatures--A Worldwide Model or a Fruitless Attempt to Regulate the Future?

The Directive on a Community Framework for Electronic Signatures is an essential and important new legal standard for the regulation of electronic signatures. The following article describes this Directive and assesses whether this new legal framework will be an effective and successful worldwide model or whether it will be rather fruitless. While doing this, I will consider the implementation of the Directive into UK and German law. This will also reveal some possibilities of how the legal status of electronic signatures can or cannot and should or should not be regulated. Furthermore, I will refer to other acts, for example, the UCITA and UETA of the US and the Model Law on Electronic Commerce and Draft Uniform Rules on Electronic Signatures of the UNCITRAL. My result is that the EU Directive is to be approved in general. Only if one said that in an ever-changing world every law was premature or even that in an imperfect world every law was either insufficient or unnecessary, would it be consequent to decline regulation of electronic signatures completely. However, regarding the details, some provisions, for example, the possibility of introducing a voluntary accreditation scheme, are open to criticism.     

The Patients’ Rights Directive (2011/24/EU) – Providing (some) rights to EU residents seeking healthcare in other Member States

This article presents the main elements of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, commonly known as the Patient’s Rights Directive. It is the latest EU initiative with regard to European Health Care and the Single Market. The main elements of the Directive contain provisions related to the prior authorisation of health care in another Member State, the reimbursement of such health care and the removal of unjustified obstacles to achieving these aims.These provisions largely reflect the recent case law of the European Court of the Justice (ECJ). Amongst these are provisions involving the use of personal data. Such provisions will engage data protection issues and will have to be carried out according to the data protection directives. Alongside this primary aim of codifying ECJ case law the Patient’s Rights Directive also introduces novel initiatives aimed at fostering cross border cooperation between various elements of national healthcare systems.Part 1 of this contribution will describe the legal basis and the aims of the PRD, Part 2 will describe the principle obligations placed on the Member States with regard to reimbursement, Parts 3 and 4 will describe other informational and procedural requirements placed upon the Member States of Treatment and Affiliation. Finally Part 5 will outline some of the novel initiatives that have been included in the PRD.The increases in the frequency of cross border-treatment that this directive attempts to facilitate are likely to see a concurrent increase in cross-border patient information flows. Such data flows will be subject to the Union’s provisions on Data Protection. It remains uncertain whether the EU’s Data Protection regime will act as inhibitor to cross-border medical treatment or rather represent a gold standard that allows patients to engage in such activities with peace of mind. The Patient’s Rights Directive will form part of the EU’s future e-Health strategy which envisages a large increase in the fluidity of patient data. A discussion of this directive is therefore merited in this journal.     

EU Refugee Qualification Directive: a Brave New World?

This article aims to map some of the major implications forasylum–related law in Europe of the Refugee QualificationDirective, which twenty-four EU Member States were requiredto implement by 10 October 2006. It seeks to build on importantstudies of the Directive completed by, among others, Hemme Battjes,in his book European Asylum Law and International Law, Nijhoff2006, and Jane McAdam, in her book Complementary Protectionin International Refugee Law, OUP 2007, albeit it takes a differentview of some key questions. Part 2 deals with the impact of the Directive on the applicationand interpretation of the 1951 Refugee Convention and its 1967Protocol. It is argued that, even read simply as a set of provisionsgiving interpretive guidelines on the application of the RefugeeConvention, it affects many things concerned with refugee eligibility,since these provisions cover key elements of the refugee definition. Part 3 deals with the impact of the Directive on the asylum-relatedhuman rights jurisdiction that currently prevails in Europein one form or another.¹ It is argued that the effect of theDirective is and must be to render Article 3 ECHR protection– or its domestic equivalent – a largely residualcategory, save in exclusion cases. Part 4 addresses to what extent, if at all, the Directive containsmandatory provisions and how, post-implementation, these canbe integrated into the national law of Member States. It isargued that, considered in purely textual terms, the key definitionaland interpretive provisions of the Directive are mostly in mandatoryform. Further, that whilst, by virtue of being a minimum standardsdirective, the Directive allows Member States to introduce orretain more favourable standards (A3), the same article stipulatesthat such standards must be compatible with the Directive. Thatproviso is of some importance given that the Directive’spreamble (at R7) identifies as one objective the avoidance ofsecondary movements. In relation to articles of the Directivewhich specify in mandatory terms how elements of the refugeedefinition are to be applied, Member States cannot be free tointroduce or retain differing standards. Parts 5 and 6 analyse suggested differences, first, betweenthe Directive’s refugee definition and the Refugee Convention(it is argued that the only potential difference of real significanceconcerns the Directive’s rendering of the Article 1F exclusionclauses of the Refugee Convention) and, secondly, between theDirective’s subsidiary protection definition and Article3 ECHR. The extent of symmetry between the new subsidiary protectioncriteria and ECHR protection under Article 3 is explored, inparticular, arguing that, whilst there are three respects inwhich subsidiary protection criteria are narrower (relatingto personal scope; the existence of cessation and exclusionclauses; and limited application to ‘health cases’),there may be limited respects in which it may be broader inscope than Article 3 ECHR. Part 7 examines patterns of implementation in the light of earlyevidence to hand from, for example, the November 2007 UNHCRsurvey of five Member States. The UK is considered as a furtherexample, that of a member state where, despite it being seenas unnecessary to make any substantial changes, the implementingmeasures have required important changes in method of approachand in conceptual language.     

Free movement of patients: Directive 2011/24 on the application of patients' rights in cross-border healthcare

This contribution comments on Directive 2011/24, providing a legal framework for cross border healthcare 13 years after the famous Kohll and Decker case law. The Directive contains provisions concerning the reimbursement of costs, the responsibilities of the Member States and their mutual cooperation in healthcare. Analysing the (potential) impact of the Directive 2011/24 on EU healthcare systems, patients and healthcare providers, it becomes clear that the impact of the Directives reaches far beyond patient mobility. The Directive creates patients' rights, pays attention to the quality and safety of healthcare services and creates an excessive structure of cooperation in the field of healthcare. The European Union seems ready to use its economies of scale to improve healthcare for all European patients.     

The Acquired Rights Directive and Compulsory Competitive Tendering in the UK: An Economic Perspective

This paper considers neglected economic aspects of the conflict between the desire of EU Member States to extend competitive tendering in their public sectors and EC law which guarantees terms and conditions of employment for workers who are transferred to a new employer. Whilst the Acquired Rights Directive explicitly contains reference to economic considerations, the debate concerning its revision has largely neglected economic analysis. Concentrating upon UK experience, we show how differences in the interpretation of the term economic in the Directive can give rise to a clash between principles of economic and legal decision-making.     

Deploying the Classic 'Community Method' in the Social Policy Field: The Example of the Acquired Rights Directive

The use of the Community method of legislation, in particular the deployment of directives, has for a long time been at the core of EC labour market policy. This article seeks to reflect on the lessons to be learned from the experience of the adoption and operation of one particularly significant directive, namely the Acquired Rights Directive, and on the experience of its transposition in one Member State, Ireland. Among features noted at the EU level are the watering down of the Commission's initial legislative ambitions; the substantial lacunae, failures to address issues and ambiguities incorporated in the text of the directive, the consequent enlarged role for the Court of Justice and the apparent difficulty in changing policy direction in the event of errors being made. As regards the Irish experience of transposing the directive, lessons learnt have included the importance of the means of implementation chosen by the Member State; the obstructive effect which national industrial relations systems may have on the evolution of a common European approach; the significance which attaches to national sanctions and enforcement mechanisms; the importance attaching to the degree of collective organisation in workplaces where the implementing legislation is sought to be relied upon; and the potential which the implementation of a directive has for disruption of the harmony of a national policy approach. Finally, the use of a form of social dialogue in the implementation of employment-related directives in Ireland is also commented upon.     

Towards an EC directive on plant breeder's rights?

Legal context: Although ‘Brussels’ has established many Directivesand Regulations in the field of IP law during the last two decades,there is still no Council Directive on plant breeder's rights. Key points: The article first examines the current national plant varietyprotection laws in force in the EC Member States. It then focuseson some figures with regard to national applications and Communityapplications for plant breeder's rights filed in the years 2001–2005.Subsequently, it discusses a number of optional provisions laiddown in the 1991 UPOV Convention and it points out the manydifferences in national laws that result from this UPOV text.In particular, it draws attention to national differences withregard to the protection of products made directly from harvestedmaterial, the farmer's privilege, and the term of protection. Practical significance: The article concludes that national applications for plant varietyprotection still play a significant role next to Community applications.It argues that the establishment of a Directive would be worthconsidering, as the differences between the laws of the MemberStates lead to barriers to the free movement of goods and toa distortion of the conditions of competition on the commonmarket.     

What Does Free Movement Mean in Theory and Practice in an Enlarged EU?

Abstract The purpose of this article is to review the main challenges to the principle of free movement of persons in theory and practice in an enlarged European Union. The right to move freely represents one of the fundamental freedoms of the internal market as well as an essential political element of the package of rights linked to the very status of EU citizenship. The scope ratione personae and the current state of the principle of free movement of persons is assessed by looking at the most recent case law of the Court of Justice and the recently adopted Directive on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. But what are the hidden and visible obstacles to free movement of persons in Europe? How can these barriers be overcome to make free movement and residence rights more inclusive? This article addresses these issues along with the following questions: Who are the beneficiaries of the free movement of persons in an enlarged Europe? What is the impact of the recent legal developments in the freedom of movement dimension, such as the European Court of Justice case law and the new Directive? And to what extent are pro‐security policies such as the Schengen Information System II and an enhanced interoperability between European databases fully compatible with the freedom of movement paradigm?     

The Cyprus and other EU court rulings on data retention: The Directive as a privacy bomb

This paper discusses the controversy surrounding the Data Retention Directive with an emphasis on the 2011 decision of the Cyprus Supreme Court which has annulled several district court orders that allowed the police access to telecommunications data relating to certain persons relevant to criminal investigations. The annulment has been on the ground that the legal provisions upon which the orders have been issued are unconstitutional. It will suggest that the decision does not entail a direct rejection of the EU Data Retention Directive and that in any event, Cyprus is not a Member State resisting the particular measure. This is because the legal provisions are deemed unconstitutional, though part of the law that has transposed the relevant Directive into national law are provisions that go beyond what the EU legislator intended to regulate through that Directive. Still, the particular Directive sits rather uneasily within the ‘human rights’ regime, in particular the one governing the individual right of privacy.