The authors present a synthetic view of the evolution of the impact of EU law on the provision of welfare services in the member states of the EU. They distinguish, in this regard, between the core welfare services, in which the impact of EU law is more recent and less important, and the services provides by public utilities, where EU law has had a major transformative impact for many years now. In recent years, however, the distinction between the two categories becomes more blurred. The paper also discusses the likely impact of the Lisbon Treaty, if and when it enters into force, on welfare integration through EU law.
The Code of Good Administrative Behaviour has passed fairly unnoticed in academic research on the principle of good administration. However, it is an important source to understand the meaning of this principle and concept in European administrative law, since it encompasses some of its dimensions that tend to be overlooked by the case law of the European Courts and also by European law scholars. Furthermore, contrary to what recent developments let believe – namely, the fact that the Commission refuses to put forth a proposal for a European regulation that would make the provisions of the Code binding – the Code remains relevant to map possible legal developments regarding good administration. The article1 explains the reasons and meaning of the link between the Code and Article 41 of the EU Charter of Fundamental Rights, analyses the complexity and uncertainty of the concept “good administration”, characterises its different legal and non-legal facets highlighting the interconnections between them. In addition, it demonstrates how these different layers are reflected in the Code, underlines the Code’s links with previous EU law developments, its added legal value and the functions it currently performs, considering also the different paths through which further legal...
[Virginie Pontin v. T-Comalux SA, ECJ (Third Chamber), Judgment of 29 October 2009, C-63/08] In autumn 2009 the ECJ made another step forward in fostering gender equality through the instrumental framework of the EU law. The case triggers the right of pregnant women to protection against employers, who use inadequately constructed procedural norms to disguise an illegal dismissal. The Court holds that where the only remedy available under national legislation to a worker dismissed during pregnancy does not provide reasonable time bars on claims for wrongful dismissal, that legislation introduces less favorable treatment linked to pregnancy and constitutes discrimination against female employees. The Court held that a 15 days limit to bring proceedings was insufficient in terms of the principle of effective judicial protection of an individual’s rights under EU law. A pregnant woman should equally enjoy other remedies beyond an action for nullity and reinstatement, such as an action for damages, in case the analogous recourses are available for other categories of dismissed workers. The Court therefore clarified an essential element for the implementation of the Pregnant Workers’ Directive in the Member States.
Article 23 of the Treaty on the Functioning of the European Union (TFEU) provides for the right of EU citizens to diplomatic and consular protection by Member States other than the State of nationality in the territory of a third country. But what are the concepts of diplomatic and consular protection embodied in that Article? Are those typical of public international law or rather novel concepts with autonomous meaning derived from EU law? This paper addresses this question and examines what are possible effects of Article 23 in terms of opposability of the concept of EU citizenship to third states as well as in terms of justiciability of the EU citizen’s right to obtain protection from a non national Member State in a third country. The paper concludes that political and legal practice of the EU and of Member States has yet to provide clear answers to these questions.
Fonte: Kluwer Law InternationalPublicador: Kluwer Law International
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The legal principle of ne bis in idem restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, act, or facts. Although few would dispute its relevance to the regulation of transnational justice, there is as yet no universally accepted ne bis in idem rule or provision available at the international level, although it is to some extent recognized and respected in Europe, via Article 54 of the Convention on the Implementation of the Schengen Agreement (CISA; integrated into EU law by the Treaty of Amsterdam) and Article 4 of the 7th Protocol of the European Convention on Human Rights. The relevant case law of the ECJ and the ECtHR has implications for the systems of criminal and administrative law in European states, as well as for the interpretation and application of the principle in some areas of EU law, such as competition law. This book analyses these important implications, fulfilling a genuine need to assess the need for – and the prospects of – a ‘European’ ne bis in idem principle. The author identifies and describes obstacles that stand in the way of a single, autonomous, and uniformly applicable general ne bis in idem principle of EU law – differently worded provisions within the different ‘European’ frameworks; a measure of confusion and conflict within the case law of the Community courts; positive conflicts of jurisdiction and the allocation of cases between the Member States; and the vague exception possibilities laid down in Article 55 CISA. Among the issues examined are the following: • the problem of defining the substance of the guarantee; • scope of application of the guarantee; • mechanisms for the coordination of the allocation of cases between Member State authorities and the role of Eurojust; • developments in enhanced cooperation in criminal matters; • fining in competition law; • extraterritoriality and convergence issues; and The author approaches the subject along two lines: first by way of conceptual analysis...
There is a rapid increase in the amount of case law on EU law in the Irish legal order. EU Law in Ireland attempts to analyse key case law, text and commentaries in a diversity of EU law-related subject areas and will provide an up-to-date and comprehensive collection of materials.
There is currently a dearth of research as to the operation of European Union law in the Irish courts. The standard published texts in European Union law do not include any materials as to the Irish legal order and research considering the operation of European Union Law in the national courts has frequently excluded data as to Ireland on the basis of a paucity of case law. However, there has been a major increase in case law in this area from the Irish Superior Courts in recent years and a large increase in European Union Regulations, Directives in Irish law. The new areas of regulation and corresponding case law generated have entailed that a collection of key case law and materials is now a timely one.
A mini-schedule of relevant primary legislation and constitutional texts are included in the publication.
This publication will be of major interest to students, academics, practitioners and Government and public servants, both in Ireland and abroad.; 1. Overview of EU law in the Irish courts 1973-2010
2. The Emanation of the State Doctrine in Irish Law: Direct and Indirect Effect and State Liability
3. The Primacy of EU law in Ireland
4. The Duty of Co-operation
5. The Constitutional Dimension to the Implementation of EU in Ireland
6. Litigation by the Irish State at EU Level and EU Law Litigation Emanating from Ireland
7. EU Consumer Law in Ireland: Product Liability...
With this paper I maintain that the regulation of social security and healthcare in EU law revolves
around the quest for a right balance between conflicting interests, involving the issues of social rights,
State and Market, distribution of competences.
In particular, the analysis of the way in which the ECJ legally frames the so called public/private
divide permits to underline the emergence of relevant dissonances in the jurisprudence concerning the
three sectors of competition, free movement and State aids.
The rationale behind some of such divergences pertain to the existence of natural asymmetries on
which evolve and take shape the constitutive elements of the European economic and social
constitution. In this sense, the lack of convergence is not undesirable per se. On the contrary, it
depends on the different role and function exercised by the solidarity principle on one hand and on the
relevance of the public financing of social services on the other hand, in their interplay with the choice
between abandon or revaluation of a (more or less) idealtpic public/private dichotomy. At the centre of
the analysis is the full incorporation or, alternatively, attenuation, in the field of social security and
healthcare, of the functional approach adopted in relation to the notion of economic activity.
Some other divergences...
Fonte: Kluwer Law InternationalPublicador: Kluwer Law International
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In March 2010, the European Higher Education Area was officially launched, proclaiming the culmination of a ten-year timeframe projected at Bologna in 1999, when the education ministers of 29 European states signed a declaration that would fundamentally influence the future of their higher education systems. Forty-seven countries, including all EU Member States and other countries as far afield as Kazakhstan, now take part in the so-called ‘Bologna Process’. Remarkably, this vast enterprise, which has led to rapid and sweeping changes in almost all higher education systems in Europe, has taken place outside the framework of the European Union and the Council of Europe. In fact, as this important legal analysis shows, it appears that with the Bologna Process the Member States have tried to sidestep the EU’s growing influence on higher education. Although the Bologna Process has generated an impressive literature addressing what it might mean, where it suddenly came from, and how it has become so powerful, until now the legal implications of the process, and its tense relationship with EU law, have been left almost entirely unexamined. This work fills that gap. Among the often controversial issues raised are the following: - avoidance of the democratically legitimate procedures of the EU’s institutional framework for cultural reasons connected with state sovereignty; - the scope of EU legal competence for various kinds of activities in the educational sector; • specific areas of overlap between EU law and the Bologna Process and their implications; • voluntary intergovernmental cooperation as a paradigmatic global shift of internationalization policies in education; - the idea that the university is being redefined...
Fonte: Kluwer Law InternationalPublicador: Kluwer Law International
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The European Union, with only 7.5% of the world’s population, is responsible for a major part of the contamination of the planet, and is a major contributor to the problems of the global environment. Fortunately, Europe has both the capacity and the experience to fight effectively against these problems, even in this ‘twenty-fifth hour’ of environmental degradation. This timely book identifies some of the weaknesses of the public enforcement mechanism inherent in Articles 258–260 TFEU, and suggests how that mechanism could be improved in order to promote the overall effectiveness of EU law and environmental law in particular. Starting from the idea that the European Union lacks a strong enforcement body to prevent Member States from exploiting loopholes in its legal system, the author thoroughly investigates the extent to which the effectiveness of the EU’s public enforcement provisions depends on voluntary compliance or on actual enforcement mechanisms. He shows that, while preventive procedures should always precede enforcement actions, European environmental law cannot be sufficiently promoted without stronger legal enforcement measures. Reviewing both the managerial methods and the enforcement mechanisms that the Commission can resort to...
This thesis aims at addressing the problem of a potential dis-embedding of the EU administration from democratic institutions. For that purpose it explores the potential of a novel approach to EU constitutionalism, namely of European conflicts-law to ensure the democratic legitimacy of EU administrative governance of GMOs. The term administrative governance is being used as referring to a system of administrative action, in which EU administrative actors implement EU law in cooperation with national administrations, as well as with scientific and private experts. In order to analyse the functioning of this system governance is employed as analytical framework. This thesis shows that the conflicts-law approach constitutes a valuable constitutional framework. It helps to identify and better understand the legitimacy problems of EU administrative governance in the field of GMOs. The existent legal rules in this area can to a certain extent be reconceived as embodying conflicts-law mechanisms and ideas. This is most visible in their aim to procedurally organise cooperation between various actors within horizontal network structures of decision-making. However, the implementation of GMO rules in practice has considerably undermined the functioning of conflicts-law mechanisms. The analysis reveals problematic shifts of authority...
Since its creation, European Union (hereinafter: ‘the EU’) has experienced various enlargements. In 1973, Denmark, Ireland and the United Kingdom joined the EU. Greece became a Member in 1981 and was followed by Spain and Portugal in 1986. Austria, Finland and Sweden acceded to the EU in 1995. In 2004, ten Central and Eastern European Countries (hereinafter: ‘the CEECs’) became EU members. Finally, another two CEECs, i.e. Bulgaria and Romania, joined the EU on 1 January 2007. What impact did previous enlargements have on national systems of private law? It is an important question since there are on-going accession negotiations with Croatia and Turkey and other countries (Macedonia, Bosnia and Herzegovina, Albania Serbia and Montenegro, Ukraine and Moldova) are also interested in acceding to the EU. As well as these countries, Russia has also developed specific relationships with the EU which affect its private law system. Learning from previous experience may help in structuring a better pattern of Europeanization. But the broader question is whether the process of ‘Europeanization’ of private law in the CEECs can be considered as concluded with membership or rather whether ‘regional policies’ are needed to contextualize the implementation of EU law and to govern its spill-overs. This special issue brings together four different contributions on the impact of EU law on the national private law systems in the CEECs in three important fields of regulatory private law...
This research aims to present a comprehensive analysis of the political and institutional processes that are at work in the judicial application of EU law on a national level. As a main novelty, the research intends to go beyond judicial behaviour models that focus predominantly on explaining the use of preliminary references. One could namely suggest that the way national courts participate in the preliminary reference procedure is not sufficient to assess the available modes for the judicial integration of Europe. Accordingly, the study considers the impact of political institutional and attitudinal factors affecting the judicial enforcement of EU law. This is done by posing new questions, for instance, the relevance of national judges’ preferences towards EU legal order and institutions, as well as by evaluating and reviewing the impact of political and legal institutions on their behaviour and its consequences for policy areas. First of all, the analysis confirms the influence of judges’ evaluation of EU institutions and their national counterparts on their self-perception as EU judges and, subsequently, in the application of EU law. Secondly, the study shows how national institutions, like governments and national high courts...
The enlargement of the EU has highlighted the challenges of compliance, but it has also helped to suggest new compliance methodologies. The combination of methodologies used by the EU and the differing levels of enforcement available are characteristic of the EU's compliance system, permitting the remarkable reach and penetration of EU norms into national systems. In this new study six authors offer their 1ssessment of the enforcement procedures and compliance processes that have been developed to ensure Member State compliance with EU law. The first three chapters examine the merits of combining both coercive and problem-solving strategies, describing the systems in place and focussing on the different levels at which compliance mechanisms operate: national, regional, and international. It also looks at horizontal compliance as well as 'from above' compliance, creating a complex and rich picture of the EU's system. The final three chapters of the book focus on different aspects of compliance seen from a national perspective. The first analyses the two bases for the use of criminal sanctions to enforce EU law: the ability of Member States to choose to include criminal penalties for non-compliance in their national law; and the imposition of criminal sanctions at a national level by EU law itself. The book then moves on to a discussion of the role of national courts in ensuring Member State compliance with...
Examining Board: Professor Hans-Wolfgang Micklitz, European University Institute Professor Giorgio Monti, European University Institute Professor Alexandra (Sacha) Prechal, Court of Justice of the European Union Professor Laurence W. Gormley, University of Groningen and College of Europe.; Defence date: 16 September 2013; First made available online on 15 January 2015.; While the law is often highly harmonized at EU level, the ways in which it is realized in the various national courts are not. This thesis looks at enforcement through damages claims for violations of EU public procurement rules. Despite important recent amendments to the procurement remedies regime, the damages provision remains indeterminate. The legislative inertia pressures the CJEU to give an interpretation and raises the question as to how the Court should deal with damages. The requirements on damages claims are clarified under both general and public procurement EU law. The action for damages is conceived as a legal process which incorporates the national realm. Therefore, a comparative law part (covering England, France, Germany and the Netherlands) examines national damages litigation in public procurement law. A horizontal discussion of the legal issues which structurally frame damages claims is provided. The remedy of damages is analyzed as a bundle of rules and its constitutive and quantification criteria are studied...
Supervisor: Professor Loïc Azoulai, European University Institute.; Award date: 12 December 2013; The thesis addresses a recent development in EU administrative law at the interface between the principle of primacy of EU law and the competence of the Member States to enforce EU law. EU law obliges Member States in a growing number of directives or regulations to equip their administrative authorities with independence from the government (‘governmental inde-pendence’). On the basis of two recent decisions of the European Court of Justice concerning the independence of national data protection authorities the legal meaning of governmental independence will be elaborated. This thesis argues that there is a broader approach in EU law triggering the establishment of domestic independent administrative authorities. However, obliging Member States to decouple domestic authorities from the national government is not without consequences. In order to determine these consequences the reception of EU inde-pendence requirements in France and Germany is examined in-depth for which telecommuni-cations, data protection and statistics serve as the fields of reference. In the following, this thesis focuses on the effect within the executive of the Member States and claims that Mem-ber States lose their autonomy regarding the setting up of their internal administrative organi-sation while self-confident administrative authorities appear on the national level challenging governmental decisions: the disaggregating effect. In contrast to other analyses...
This book revisits, in a new light, some of the classic cases which constitute the foundations of the EU legal order and is timed to celebrate the 50th anniversary of the Rome Treaty establishing a European Economic Community. Its broader purpose, however, is to discuss the future of the EU legal order by examining, from a variety of different perspectives, the most important judgments of the ECJ which established the foundations of the EU legal order.
The tone is neither necessarily celebratory nor critical, but relies on the viewpoint of the distinguished line-up of contributors - drawn from among former and current members of the Court (the view from within), scholars from other disciplines or lawyers from other legal orders (the view from outside), and two different generations of EU legal scholars (the classics revisit the classics and a view from the future). Each of these groups will provide a different perspective on the same set of selected judgments.
In each short essay, questions such as 'what would have EU law been without this judgment of the Court? what factors might have influenced it?; did the judgment create expectations which were not fully fulfilled?' and so on, are posed and answered. The result is a profound...
This article looks upon the most recent developments in the European Union's accession strategies, as from the start of accession negotiations. It first seeks to demonstrate that the pre-accession conditionality rationale of stabilising present and protecting future integration objectives underpins the so-called 'specific safeguard clauses' of the 2003 and 2005 Acts of Accession and the latter's cooperation and verification mechanism, accordingly referred to as post-accession conditionality tools. It then argues that this rationale, emphasised also in the imperative of maintaining the momentum of European integration of the Union's 'integration capacity', above all necessitates effective compliance with EU law, and thus full administrative and judicial capacity of (prospective) Member States. Indeed, the lynchpin of these new conditionality devices evokes putting them in the wider context of compliance mechanisms in the enlarged European Union. It thereby becomes apparent how conditionality has lead to a considerable empowerment of the European Commission which, when reaching into the post-accession phase, entails a problematic differentiation between the Member States. Conditionality methodology furthermore, and this is equally shown...
Fonte: Kluwer Law InternationalPublicador: Kluwer Law International
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(Published version of EUI Ph.D. thesis, 2008.); Since the seminal judgment of the European Court of Justice in Courage v. Crehan (2001), a right to damages is available not only to individuals (i.e. companies) acting against the Member States, but also to individuals acting against each other, as a result of the direct effect of Article 101 of the Treaty on the Functioning of the EU. However, it is only since the Commission’s 2008 White Paper on Damages that a real impetus to the ‘private enforcement’ implied by this decision has taken place. If the White Paper is converted into legislation, it will have profound implications on the way both EU competition law and European (EU or national) private law functions. It is the provocative thesis of this book that the Commission’s struggle for a more ‘effective’ system of private enforcement has gone from being a mere enhancement of a single EU policy (competition) to slowly but surely fuelling a paradigm shift in EU law. In an absorbing and richly detailed analysis of this thesis, the author examines such controversial and complex issues facing private enforcement of competition law in the EU as the following:
- the binding effect of competition authority decisions on a civil proceeding;
- the pass-on defence and standing of indirect purchasers;
- distinguishing between restitution and compensation;
- arguments defining the ‘right’ plaintiff’;
- national procedural autonomy;
- containing the ‘spill-over’ effect; and
- assessing a unified competition litigation system.
The discussion of these issues and others underscores their tendency...
Over the last decade, a significant body of biomedical law has emerged within EU law. In so far as the EU has long been portrayed as aiming mostly if not only at economic integration, it is surprising at face value to see issues such as human embryonic stem cell research or trade in oocytes even reach the EU's political and legal agenda. Although it is possible to argue that the puzzle waters down when one considers not only that EU has in fact always been open to "non-market" values on the one hand but also that biomedical issues have themselves undergone radical transformations recently, as one commonly speaks now of "Tissue Economies", these elements do not seem to suffice for explaining the development of a body of biomedical law within EU law. It is argued here that many of the legal technicalities that sustain the view that the EU does not have any straightforward competences in the field have been balanced by the specifically "polity-building" dimension of "Ethics" (and here bioethics). In other words, the research presented here establishes several manners in which "Ethics"' have been instrumental in the EU law making process, thus bridging EU law and biomedicine and simultaneously enabling the EU to assert itself as polity.
Under the budgetary strain of the economic crisis, many European governments have
introduced spending cuts in higher education. As a consequence, universities increasingly
have to rely on tuition fees and private sources of funding to sustain themselves. This
development fits in with a broader tendency of treating higher education increasingly as an
economic resource and commodity, which is fostered by European-level processes such as
most notably the Bologna Process and the Lisbon Strategy. Considering the fundamental
importance of these issues, touching upon the core of our views on what an equitable and
egalitarian society entails, it is imperative that the decisions that are being taken are
democratically legitimate and that the policy makers are accountable for the measures they
enact. Therefore, it is worrying that many of the most crucial and influential decisions are
taken in intergovernmental contexts and implemented by means of soft law - of which the
democratic legitimacy is doubtful. The Bologna Process is an intergovernmental policy
forum, participation in which is voluntary and whose decisions are non-binding, suffering
from all the accountability defects inherent in international policy making - magnified by its
soft law character. The Lisbon/Europe 2020 Strategy does take place within the EU's