The Arguments from Coherence: Analysis and Evaluation

In this article, the theory of argumentation set out by theDutch scholars Frans van Eemeren and Rob Grootendorst is broughtto bear in subjecting the general form of the argument fromcoherence to a critical analysis. First, a distinction is broughtout between two basic kinds of argument from coherence: in oneuse this argumentative structure occurs as a sequence of twoarguments establishing that a standpoint constitutes a particularinstantiation or a inherent quality of the system it will becomepart of (symptomatic argument); in the other use we have a mainsymptomatic argument supported by a subordinate argument appealingto instrumental considerations (pragmatic argument). It is thenclaimed that arguments from coherence are complex types of argumentation,structured at various argumentative levels, where the premisesmust be taken together to yield an adequate defence of the conclusion(coordinative argumentation). Finally, an evaluative assessmentis made as to whether arguments from coherence can serve acceptablyas tools for settling disputes: it will be maintained that wecan generally welcome these argumentative structures as soundand fully acceptable provided we are aware of the interpretivediscretion their use entails.     

Eric W. Orts and Kurt Deketelaere (eds.) 2001. Environmental Contracts: Comparative Approaches to Regulatory Innovation in the United States and Europe. The Hague: Kluwer Law.

International Environmental Agreements: Politics, Law and Economics -     

Robustness of subjective welfare analysis in a poor developing country: Madagascar 2001

We analyse the subjective perceptions of poverty in Madagascar in 2001 and their relationship to objective poverty indicators. We base our analysis on survey responses to a series of subjective perception questions. We extend the existing empirical methodology for estimating subjective poverty lines on the basis of categorical consumption adequacy questions. Based on this methodology, we calculate the household-specific, subjective poverty lines. We are able to compare between the results of subjective poverty analysis using several types of subjective welfare questions. Our results show that the aggregate poverty measures derived from consumption adequacy questions accord quite well with the poverty measures based on objective poverty lines. We demonstrate that the subjective welfare analysis can be used in poor developing countries for evaluating socio-economic and distributional impacts of various policy interventions.     

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.     

The implementation of the EU Prospectus Directive - a country-by-country analysis

Dr. Axel Gehringer HengelerMueller David Byers McCann FitzGerald, Solicitors, Dublin, Ireland Stefano Cuccia Head of Regulation, TLX, Milan Henri Wagner Allen and Overy, Luxembourg Petra Zijp NautaDutilh, Amsterdam José Manuel Cuenca and Yolanda Azanza Clifford Chance Daniel Bushner and Jonathan Parry Ashurst, London The first 150 words of the full text of this article appear below.