Showing papers in "Common Market Law Review in 2007"

Outsider or Frontrunner? Recent developments under international and European law on the status of the European Union in international organizations and treaty bodies.

Abstract: Much of the European Union’s foreign policy credo focuses on the promotion of effective multilateralism. The Council of the European Union put this notion at the heart of the European Security Strategy (2002), and the European Commission referred to the EU as a “frontrunner” in the UN system in its communication on EU-UN relations (2003). Whereas the world organization with its wide net of specialized agencies offers a most important platform for multilateral diplomacy for EU Member States, it is less flexible as regards the participation of the European Union itself. Membership in the main organization is still confined to States only (Art. 4(1) of the UN Charter). True, in 1991, the first UN specialized agency, the Food and Agricultural Organization (FAO), adopted the necessary constitutional modifications to allow membership of the European Community. However, since then no major UN specialized agency has welcomed the EC as a member.

The double-headed approach of the ECJ concerning consumer protection

Abstract: The extent to which consumers are to be ‘protected’ is part of the larger debate on how interventionist States ought to be. Whatever background views on political theory one may hold, in the EU of today it seems clear that fears that consumers, as the largest group in the economy, are “not heard” are unwarranted. The Council first emphasised the importance of consumer interests for the European legal system in 1975. Since then, consumer protection has been reinforced at EC level on innumerable occasions. Today, one could even argue that the pendulum has swung to the other extreme and ‘consumerism’ has become the dominating issue of harmonisation. As the Commission recently observed: “[t]he development of consumer policy at EU level has been the essential corollary of the progressive establishment of the internal market”. Understanding the interrelation between consumer policy and the internal market is a central aim of this paper. The weight given to consumer interests in the case law of the ECJ is of crucial importance in this respect.In relation to negative harmonisation, we submit that the ECJ is sceptical of any restrictions on trade at national level that are founded on consumer protection. While recognising consumer protection as a fundamental value of EC law, the Court does not hesitate to unmask interventionist legislation at national level as being in the end simply unnecessary to achieve that legislation’s stated goal, and thus contrary to the principle of proportionality. The case law on positive harmonisation, by contrast, could not be more different in spirit. Challenges to the legal validity of EC consumer protection measures are virtually absent from the EC legal landscape. The Court allows the Community legislation “a broad discretion in areas which involve political, economic and social choices on its part, and in which it is called upon to undertake complex assessments”. Moreover, on the whole the Court has been at pains to grant the consumer protection directives a wide scope of application and – crucially – to give its provisions the most interventionist reading. While this finding of a diverging case law can in our view easily be demonstrated by contrasting the case law in the field of negative harmonisation with the jurisprudence resulting from the areas of positive harmonisation, its explanation will be less obvious and the resolution of the tension between these differing premises will be extremely controversial, though of primary importance for any future reform of this area of the law.In what follows we will give a brief outline of the significance of consumer protection for EC law before we examine the case law of the ECJ in the areas of both negative and positive harmonisation concerning consumer protection. Our analysis concentrates on the recent case law (after 2001) but where necessary older cases will also be discussed. In a final section, we seek to evaluate the present state of affairs.

European constitutionalism and the European arrest warrant: In search of the limits of contrapunctual principles

Abstract: *Somerville College, Oxford. This is an updated and substantively revised version of my earlier article, “European Constitutional Pluralism and the European Arrest Warrant: Contrapunctual Principles in Disharmony”, Jean Monnet Working Paper 10/05, available at www.jeanmonnetprogram.org/papers/05/051001.html. I am grateful to participants of the WISH 2005 conference for their comments on a yet earlier draft of this article, particularly to F. Snyder. I further thank A. Hinarejos Parga, D. Leczykiewicz, P. Craig, S. Weatherill and other participants of the Oxford EC Law Discussion Group held on 27 Oct. 2006 as well as M. Poiares Maduro, M. Kumm, Z. Kühn, N. Barber and M. Bobek, who provided me with further stimulating comments and discussions at various stages of writing. All faults remain of course mine. Comments are welcome at jankomarek@centrum.cz. 1. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. 2002, L 190/1. 2. See generally Walker, “In search of the area of freedom, security and justice: A constitutional odyssey” in Walker (Ed.), Europe’s Area of Freedom, Security and Justice (Oxford, 2004). 3. Polish Constitutional Tribunal, judgment of 27 April 2005, P 1/05, available in English at www.trybunal.gov.pl/eng/summaries/summaries_assets/documents/P_1_05_full_GB. pdf; German Federal Constitutional Court, judgment of 18 July 2005, 2 BvR 2236/04, available in English at: www.bundesverfassungsgericht.de/en/decisions/rs20050718_2bvr223604en.html; Supreme Court of Cyprus, judgment of 7 Nov. 2005, Ar. No. 294/2005. The decision in Greek with a short English summary is available as a Council document No 14281/05 of 11 Nov. 2005. For short information on it, see Mitsilegas, “The constitutional implications of mutual recognition in criminal matters in the EU”, 43 CML Rev. (2006) 1277, at 1298. ommon Market Law Review 44: 9–40, 2007. © 2007 Kluwer Law International. Printed in the Netherlands.

The new Audiovisual Media Services Directive: Television without frontiers, television without cultural diversity

Abstract: After long deliberations, the European Community (EC) has completed the reform of its audiovisual media regulation. The paper examines the main tenets of this reform with particular focus on its implications for the diversity of cultural expressions in the European media landscape. It also takes into account the changed patterns of consumer and business behaviour due to the advances in digital media and their wider spread in society. The paper criticises the somewhat unimaginative approach of the EC to new media and the political (and at times protectionist) considerations behind some of the Directive's provisions.

Free movement of goods: Recent developments in the case law

Abstract: This article critically reviews the case law of the European Court of Justice from 2002 to 2006. It starts by examining the jurisprudence on restrictions internal to a Member State, i.e. those imposed on transactions which do not involve traders or goods in or from other Member States. The concept of a customs union is also looked at here. The article then reflects on whether the provisions of Article 28 et seq. apply to the legal relations of individuals and companies inter se. It explores the relationship between the legal regime on free movement of goods on the one hand and those relating to persons, services, and capital on the other. There follows a discussion of the continuing development in the Court’s case law which started with Keck, drawing also on the Opinions of several Advocates General up to the most recent cases Commission v. Italy (Moped trailers) and Mickelsson. Moving from imports to exports, the authors analyse the judgments on Article 29 EC and call for clarifications in the Court’s approach. Following this, the article contemplates the cases on justifications for restrictions on the free movement of goods, encompassing the concept of “mandatory requirements”, the principle of proportionality, public health, public policy and fundamental rights as well as intellectual property. The authors conclude by commending the broad stability in the Court’s case law on these aspects of the common market, while highlighting their concerns about some specific developments.

Salvation outside the Church: Judicial protection in the third Pillar after the Pupino and Segi judgments

Abstract: Eight years ago, as the Treaty of Amsterdam entered into force, when assessing the judicial system of EU Justice and Home Affairs (JHA) law, I borrowed a well-known British political metaphor and suggested that there was “something of the night” about EU cooperation in that area. Four British Home Secretaries later, is it time to conclude that the judicial system of the Third Pillar is “not fit for purpose”? To answer this question, we need in particular to examine the EU courts’ case law concerning the Third Pillar – which since Amsterdam basically covers cooperation in policing and criminal law – as it has developed in the meantime, in the context of the adoption of much far-reaching legislation which affects the rights of individuals. The issue of effective judicial protection concerns not only the jurisdiction of the EU courts, but also the basic issues of the legal nature of the Third Pillar and the legal effect of Third Pillar measures. Substantively, the general principles of Community law have also made a significant contribution to ensuring the judicial protection of individuals. This paper therefore considers the effectiveness of judicial protection within the Third Pillar as it has been shaped to date by, in particular, the Court of Justice. To this end, an analysis is presented here of the following subjects: the jurisdiction of the EU courts over Third Pillar matters; the legal effect of Third Pillar matters in the national legal order (and the corresponding obligation upon national courts to ensure effective judicial protection); and the application of the general principles of law to the Third Pillar.

The relationship of the EC courts with other international tribunals: Non-committal, respectful or submissive?

Abstract: The extent to which courts from different jurisdictions engage in a judicial dialogue with each other has become a topic of growing interest. In this article, I plan to tackle the topic from the perspective of the courts of the European Communities and inquire how they deal with judgments of other international courts and tribunals. As will be seen, the EC courts refer with varying frequency to other tribunals. They usually do so to bolster the persuasive force of their own rulings. Particularly in respect of judgments of the European Court of Human Rights (“ECtHR”), the EC courts show a large measure of deference. Yet, although they have acknowledged the possibility that they might be bound by the rulings of another tribunal, the EC courts have never accepted this in an actual case. This essay focuses on one question in particular: should the EC courts consider themselves bound by rulings of other international tribunals? Having reviewed the case law to date, I will assess what the relationship of the EC courts to other international tribunals could look like in view of the changing, globalizing landscape.

Implementing Framework Decisions

Abstract: Within the European Union, framework decisions have been developing at a steady pace since the year 2000. Obligations ensue from these framework decisions for the Member States to adjust their own national laws and regulations, if necessary, in the manner prescribed by the framework decisions. The obligation to make the necessary adjustments to national regulations is enshrined in Article 34(2)(b) of the TEU. It stipulates that framework decisions are binding on the Member States as to the result to be achieved, but leaves it up to the Member States to choose the form and methods to achieve that result. The TEU does not give any other rules on implementing framework decisions. When it comes to implementation, framework decisions show similarities to directives. According to Article 249(3) EC, directives are also binding as to the result to be achieved, and the choice of the form and methods of implementation is left to the Member States. In case law of the European Court of Justice, relatively detailed rules have been developed on implementing directives. That case law defines the freedom of choice that Article 249(3) EC allows the Member States in more detail. This paper centres on the question whether norms (or principles) – similar or otherwise to the rules developed for directives – can also be designated which the Member States must observe in implementing framework decisions. The search for the existence and content of norms for the implementation of framework decisions follows two lines. First of all, the meaning of Article 34(2)(b) TEU can be worked out in more detail on the basis of a comparison with the Treaty definition of the directive as legal instrument. In section 2, a schematic overview is given of the case law of the Court of Justice on implementing directives, after which in section 3, the Treaty definitions of framework decisions and directives are compared and analysed. The second line of research concerns the evaluation practice that has developed in relation to framework decisions, in which the Commission and Council take positions