Showing papers in "European Law Journal in 2009"

Informal Politics, Formalised Law and the ‘Social Deficit’ of European Integration: Reflections after the Judgments of the ECJ inVikingandLaval

Abstract: The judgments of the European Court of Justice (ECJ) of December 2008 in Viking and Laval on the compatibility of national collective labour law with European prerogatives have caused quite a heated critical debate This article seeks to put this debate in constitutional perspectives In its first part, it reconstructs in legal categories what Fritz W Scharpf has characterised as a decoupling of economic integration from the various welfare traditions of the Member States European constitutionalism, it is submitted, is bound to respond to this problematique The second part develops a perspective within which such a response can be found That perspective is a supranational European conflict of laws which seeks to realise what the draft Constitutional Treaty had called the ‘motto of the union’: unitas in pluralitate Within that framework, the third part analyses two seemingly contradictory trends, namely, first, albeit very briefly, the turn to ‘soft’ modes of governance in the realm of social policy and then, in much greater detail, the ECJ's ‘hard’ interpretations of the supremacy of European freedoms and its strict interpretation of pertinent secondary legislation The conflict‐of‐laws approach would suggest a greater respect for national autonomy, in particular, in view of the limited EU competences in the field of labour law

Accountability, Control and Independence: The Case of European Agencies

Abstract: This article points at two problematic assumptions made in some of the contemporary European agency literature. It proposes a conceptual framework, integrating accountability, autonomy and control, and aims to demonstrate how this type of conceptualisation contributes to clarifying problematic aspects of the current European agency debate. Empirical evidence from interviews with high-level practitioners is provided to illustrate the relevance of the proposed framework. The empirical information reveals that, at times, the de facto level of autonomy displayed by some European agencies is below the autonomy provided by the formal legal rules as a result of ongoing controls exercised by one (or other) of the principals. The repercussions that flow from these empirical insights for the agency debate in general, as well as for our understanding of agency accountability, will be discussed at length.

The transnational politics of judicialization. Van Gend en Loos and the making of EU polity

Abstract: This article tracks the genesis of one of the EU's most established meta‐narratives, that of Europeanisation‐through‐case‐law. Instead of studying this theory of European integration as an explanatory frame, I consider what is at stake in its genesis as a dominant frame of understanding of Europeanisation. I trace its emergence in the conflicting theorisations of the relationship between law and the European Communities that come along with the ECJ's ‘landmark’ decisions (Van Gend en Loos and Costa v ENEL). This approach helps seize the genesis of a specific and—at the time—rather unlikely political model for Europe in which a Court (the ECJ) is regarded as the very locus of European integration's dynamics as well as the best mediator and moderator of both Member States' ‘conservatism’ and individuals' ‘potential excesses’.

Legislation, Delegation and Implementation under the Treaty of Lisbon: Typology Meets Reality

Abstract: The Treaty of Lisbon has introduced a complex new typology of acts, distinguishing between legislative, delegated and implementing acts. This reform, the first since the Treaty of Rome, will have an impact on some of the most contested topics of EU law, touching several central questions of a constitutional nature. This article critically analyses which potential effects and consequences the reform will have. It looks, inter alia, at the aspects of the shifting relation between EU institutions, the distribution of powers between the EU and its Member States, as well as the future of rule‐making and implementation structures such as comitology and agencies.

A European Legal Method? On European Private Law and Scientific Method

Abstract: This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.

Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights

Abstract: The fight against trafficking in human beings has been high on the political agenda of international organisations, regional organisations and states for more than a decade. The European Union (EU) and the international community continuously reaffirm their commitment to work jointly in countering the phenomenon. After years of arguing over a common definition and approach that culminated in the first international definition in 2000, it could be assumed that the international and European definitions solve the issue of how to define and counter trafficking in human beings. Still, the debate on how to understand and approach the problem has not ceased to exist. In particular, the dominant opposition between a rights-based and a law enforcement approach has not been dissolved by calls for holistic or multi-faceted approaches. The aim of this article is to identify the approach taken by the EU, looking out for conceptual (in-)consistencies, underlying assumptions and convictions. The rationale guiding EU action is extracted and questioned by disclosing silenced aspects and contrasting them to their reappearance in other legal instruments. It is argued that the humanitarian intentions of victim protection are overshadowed by general anti-immigration conveniences. The approach taken by the EU not only provokes the somewhat artificial opposition between innocent victim and guilty migrant, but it can easily fall prey to deeply entrenched gender and racial stereotypes.

Governing Without Law or Governing Without Government? New‐ish Governance and the Legitimacy of the EU

Abstract: The way the EU is governed and the way such governance is perceived contributes centrally to the legitimacy of the European enterprise. This legitimacy underpins both the acceptance and the effects of EU activity. Legitimacy is a product of the way in which decisions are taken, and the nature and quality of such decisions. Pressures created by concerns about both forms of legitimacy affecting EU decision making partially explain the turn in legal scholarship away from the more traditional preoccupation with the analysis of legislative instruments and case‐law, towards a more broadly based conception of governance which involves the examination of a more diverse range of processes and instruments. This article offers an analysis of the parameters of newness in governance. The overall argument is that some of the more innovative governance modes are not so new, whilst more recent and celebrated modes, although displaying elements of newness, are, perhaps, not that innovative. The focus of the new governance in the EU is largely on governing without law, rather than the more radical governing without government; hence the suggestion that we are experiencing only ‘new‐ish governance’. The article asks whether a limited conception of new governance is inevitable given the legitimacy constraints within which the EU operates, or whether the potential for developing a broader conception of governance, through wider participation and involvement of non‐governmental governing capacities, might bolster legitimacy through both better processes and better outcomes.

Between ‘Common Values’ and Competing Universals—The Promotion of the EU's Common Values through the European Neighbourhood Policy

Abstract: The aim of this article is to discuss the position of common values in defining the EU's identity by using the European Neighbourhood Policy (ENP) as an example. It is argued that the notion ‘common values’ is used by the EU institutions as both a universal and as an EU concept, which highlights the abstract nature of these values. This abstraction is also reflected in the way in which Russia has recently aimed to develop its own set of values which could be adopted by its neighbouring countries. The abstraction of values means that, in practice, their meaning in the context of ENP is decided by the European Commission through the implementation of Action Plans. The central position given to the promotion of common values requires that the ENP be reformulated so as to guarantee a stronger degree of participation of the neighbouring countries in the formulation and implementation of the ENP objectives.

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

Abstract: 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.

Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums

Abstract: In the wake of the extensive scrutiny of the human rights credentials of the new Member States under the EU pre-accession conditionality, which itself was riddled with paradoxes, this article considers a rather unexpected irony thrown up by the accession of these countries. It is that the post-communist constitutional courts, which have been applauded for vigorous protection of fundamental rights after the fall of the Communist regime that was marked by nihilism to rights, have come rather close to having to downgrade the protection standards after accession, due to the new constraints of supremacy of EC law. The article will consider the sugar market cases of the Hungarian and Czech Constitutional Courts and of the Estonian Supreme Court, which appear to add weight to the concerns that have been voiced in some older Member States about the fundamental rights protection in the EU. Indeed such concerns were recently also addressed in the concurring opinions to the Bosphorus judgment of the European Court of Human Rights.

Does Co-Regulation Strengthen EU Legitimacy?

Abstract: Within the Better Regulation programme of the EU, co‐regulation is promoted as an important strategy to improve the regulatory environment within Europe. It is assumed that co‐regulation can enhance the legitimacy of EU governance in the field where this strategy is used. The purpose of this article is to assess the truth of this premise and to analyse whether co‐regulation strengthens the legitimacy of EU governance. To this end, the criteria of input and output legitimacy are applied to the European social dialogue as a form of co‐regulation in the EU policy area of social law. In this article, a link is made between the tendency to prescribe co‐regulation as a specific regulatory strategy in EU legislative policy and the existing knowledge on the purposes and effects of co‐regulation and the conditions under which co‐regulation can function as a regulation strategy.

Human rights in the Council of Europe and the EU: towards 'individual', 'constitutional' or 'institutional' justice?

Abstract: The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world's most successful experiment in the trans-national judicial protection of human rights. The EU's much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU's interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much-neglected question, simple to state but not so easy to answer: is the trans-national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?

The Takeover Directive: Is a Little Regulation Better Than No Regulation?

Abstract: This article examines Directive 2004/25/EC on Takeover Bids through a regulatory lens in order to determine its effectiveness as a regulatory mechanism. A central regulatory problem for European legislators is to determine the optimal balance between harmonisation and diversity, and the directive reflects the balance which was struck. The article questions whether the resulting ‘light regulatory touch’ may have jeopardised the existing efficient self‐regulatory regime which operates in the UK (the largest European takeover market), while simultaneously undermining the directive's goal of facilitating takeovers and yielding a level playing field.

‘We want you! But . . .’ Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

Abstract: The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.

Family Reunification Rights of (Migrant) Union Citizens: Towards a More Liberal Approach

Abstract: Over the years, in the case-law of the European Court of Justice (ECJ) determining the availability of family reunification rights for migrant Member State nationals, the pendulum has swung back and forth, from a „moderate approach‟ in cases such as Morson and Jhanjan (1982) and Akrich (2003), towards a more „liberal approach‟ in cases such as Carpenter (2002) and Jia (2007). Under the Court‟s „moderate approach‟, family reunification rights in the context of the Community‟s internal market policy are only granted in situations where this is necessary for enabling a Member State national to move between Member States in the process of exercising one of the fundamental freedoms; in other words, where there is a sufficient link between the exercise of one of the fundamental freedoms and the need to grant family reunification rights under EC law. Conversely, under the Court‟s „liberal approach‟, in order for family reunification rights to be bestowed by EC law it suffices that the situation involves the exercise of one of the fundamental freedoms and that the claimants have a familial link which is covered by the Community‟s secondary legislation: there is no need to illustrate that there is a link between the grant of such rights and the furtherance of the Community‟s aim of establishing an internal market. The recent Eind and Metock judgments (and the Sahin order) have shifted the pendulum towards the „liberal approach‟ side by making it clear that it is not necessary a) that the family members of migrant economic actors have been lawfully resident in another Member State, prior to their move to the host State where they accompany or join the migrant; or b) (according to Metock and Sahin) that they have been family members of the migrant economic actor at the time that that person had exercised his freedom to move. In this paper it will be explained that the fact that the EU is aspiring to be not only a supranational organisation with a successful and smoothly-functioning market but also a polity the citizens of which enjoy a number of basic rights which form the core of a meaningful status of Union citizenship, is the major driving force behind this move. In particular, the move towards a wholehearted adoption of the „liberal approach‟ seems to have been fuelled by a desire, on the part of the Court, to respond to a number of problems arising from its „moderate approach‟ and which appear to be an anomaly in a Citizens‟ Europe. These are: a) the incongruity caused between the (new) aim of the Community of creating a meaningful status of Union citizenship and the treatment of Union citizens (under the Court‟s „moderate approach‟) as mere factors of production; and b) the emergence of reverse discrimination. The paper will conclude with an explanation of why the adoption of the Court‟s liberal approach does not appear to be a proper solution to these problems.

Beyond Multilingualism. On different approaches to the handling of diverging language versions of a Community law

Abstract: This article deals with a problem created by the EU's multilingualism, the fallibility of translators and the ruses of politicians: for different reasons, it is quite common that equally authentic language versions of a Community law have different meanings if taken on their own. While the ECJ's uniform interpretation approach to this problem, which must be seen as required under the non‐discrimination principle, has permitted equitable results in those cases decided by the ECJ, it would not be adequate for the simplest type of case, ie that a citizen has every reason to trust her own language version of a law. In such a case, her legitimate expectations in the equal authenticity of that version requires protection. De lege lata the article therefore proposes, in the interest of generally equitable solutions, a balancing, in the individual case, of the protection of legitimate expectations and the non‐discrimination principle. De lege ferenda it proposes a more radical solution, ie that there be only one authentic version of every Community law.

A Disabled Market: Free Movement of Goods and Services in the EU and Disability Accessibility

Abstract: Individuals with a disability who wish to use goods and services can have a variety of specific needs, ranging from accessible written information to standard products and services which have disability accessibility features built into them. In light thereof, this article focuses on the impact which Community law has had, and could potentially have, on ensuring an EU-wide market in products and services which are accessible to consumers with a disability. The article examines the (possible) impact of a variety of provisions, including the rules relating to the free movement of goods and services (Articles 28 and 49 EC, respectively), the internal market (Articles 94 and 95 EC), non-discrimination (Article 13 EC), EU citizenship provisions, and the work of the European standardisation bodies such as CEN. The central question throughout the article is does EC law allow for, or discourage, the establishment of mandatory disability accessibility standards at the national or EU level, and have the provisions been used to permit or establish such standards to date?

The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?

Abstract: The article aims to analyse the extent to which mutual recognition and mutual trust in the criminal law area are developing in the EU in the context of the implementation of the European Arrest Warrant (EAW). First, an overview of the decisions of the Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given. These decisions are evidence of a tension, on the one hand, between mutual recognition and state sovereignty and, on the other hand, between the powers of the European institutions in criminal matters and the fundamental rights of the individual. Second, national case‐law in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, a global assessment of the EAW will be made. Is this instrument effectively promoting normative mutual trust among the judicial authorities in the EU? Should it be amended or is it the wrong response at the wrong time? Some suggestions will be put forward, in light of what is considered to be the nature of the EAW and the birth of this instrument as part of the mutual recognition agenda.

'Cultural Defence’ of Nations: Cultural Citizenship in France, Germany, and the Netherlands

Abstract: This article presents a new development in European immigration policy Focusing on France, Germany and the Netherlands, I describe a process of ‘culturalisation’ of admission and citizenship rules in Europe intended to reinforce liberal values and national identity I then suggest a two‐stage set of immigration‐regulation principles: in the first stage, immigrants would have to accept some structural liberal‐democratic principles as a prerequisite for admission While Europe has criteria for state admission, anchored by the Copenhagen Criteria, Europe has not yet formalised definite criteria for immigrants' admission In the second stage, as part of the naturalisation process, immigrants would be expected to recognise and respect constitutional principles essential for obtaining citizenship of a specific state I call this concept ‘National Constitutionalism’

Reflexive Governance and European Company Law

Abstract: The use of reflexive forms of governance is growing within the EU, in particular as the open method of coordination (OMC) is applied to a wider range of contexts. Reflexive approaches view diversity of laws and practices across the Member States as the basis for experimentation and mutual learning within the overall process of European integration. Company law, however, seems to be an exception to this trend: recent activity in this area has mostly taken the form of ‘hard law’ harmonisation through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice concerning freedom of movement, most notably the Centros case. The deliberations of the European Corporate Governance Forum barely qualify as a ‘company law OMC’ because of the limited space allowed for ‘learning from diversity’; instead, differences in the laws of the Member States are seen, in the discourse of the Forum, as ‘distortions of competition’. In the area of labour law, by contrast, a degree of functional convergence and a coordinated raising of standards have recently been achieved by the dovetailing of the OMC with social policy directives. The contrasting experiences of labour law and company law suggest that reflexive or experimentalist approaches to European governance can be effective when they operate so as to complement mechanisms of harmonisation and regulatory competition, rather than being presented as alternatives to them.

The European Democratic Challenge: The Forging of a Supranational Volonté Générale

Abstract: This article explores in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, it is claimed that the democratic deficit must be disaggregated, given that the Union has not only several shortcomings, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the Member States, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences and the plurality of law-making procedures.

Subsidiarity in the Area of EU Justice and Home Affairs Law-A Lost Cause?

Abstract: This article intends to highlight the concept of subsidiarity in the area of the third pillar and EU criminal law more generally In doing so, the article tries to show that criminal law could and should be seen as imbued with ‘subsidiarity’ and, more specifically, that it could be viewed as an expression of the principle of ultima ratio—a minimalism approach—in criminal law Accordingly, the article asks why subsidiarity appears to be forgotten in third pillar matters despite its important function in this area Moreover, the article confronts such a desired application of subsidiarity in the context of established EC law doctrine, by questioning whether it is possible simply to transplant the supranational discussion into the terrain of criminal law Further, the article explores the function of Article 47 EU as the watchdog of the supranational sphere and discusses also briefly the phenomenon of enhanced cooperation in relation to the principle of subsidiarity in the domain of EU Justice and Home Affairs

The Scope of Article 12 of the Treaty of the European Communities vis-à-vis Third-Country Nationals: Evolution at Last?

Abstract: This article will critically examine the traditional interpretation of Article 12 EC—prohibiting discrimination on the basis of nationality—as not applying to third country nationals (TCNs). Different arguments, both for and against this ‘classic’ interpretation, will be considered. Analysing the question of the ‘scope of application of the EC Treaty’, with a view to determining the scope of application of Article 12 EC, it will be emphasised that this is not restricted to the right of free movement, in that the latter's restricted personal scope of application does not determine that of Article 12 EC. This is all the more true following the Treaty of Amsterdam's partial ‘Communitarisation’ of policies on visas, asylum and immigration, which tend to apply principally to TCNs. In extending the material scope of application of the EC Treaty, this ‘Communitarisation’ simultaneously leads to an extension of the specific scope of application of Article 12 EC. Working from the hypothesis that Article 12 EC could indeed apply to TCNs, we will then examine the eventual consequences of such an application.

Race Equality and TCNs, or How to Fight Discrimination with A Discriminatory Law

Abstract: Two subjects often fit with difficulty in ‘Fortress Europe’: Equality and Third Country Nationals (TCNs). EC Law presents fundamental weaknesses with regard to TCNs in the intersections between race, religion and nationality discrimination. In particular for non-EU nationals, these three grounds of discrimination can be closely related, and difficult to distinguish. However, they are of great importance for the integration and fair treatment of migrants, which was one of the objectives of the Tampere Programme. This article analyses the extent to which the Race Equality Directive (43/2000/EC) and the Framework Equality Directive (78/2000/EC) provide an effective protection against ‘racial related discrimination’. It suggests that the loopholes of both Directives, together with the current interpretation of Article 12 EC, have institutionalised not only a hierarchy of equalities, but also a hierarchy of peoples, and it explores possible interpretative solutions.

When Worlds Collide: Enforcing United Nations Security Council Asset Freezes in the EU Legal Order

Abstract: Asset freezes are since 2000 being applied by the United Nations (UN) Security Council (SC) to non-state actors. This came about as a ‘mutation’ of the sanctions program initiated by Resolutions 1267 (1999), 1333 (2000) and 1390 (2002): currently the targets are only supected terrorists or terrorism financiers. This ‘mutation’ has created perplexities and problems, namely for the EU, which enforces UN SC Resolutions by a combination of first and second pillar methods. The main problem concerns issues of fundamental rights, currently being litigated. The debate on the compatibility of the current practice of UN SC asset freezing within EU law takes place amidst a fundamental lack of clarity as to the exact purposes and operational objectives of such freezes. It is argued that this practice amounts to an ad hoc (para-)criminal procedure measure, enacted by political bodies rather than courts, and without judicial oversight. The current UN SC practice of asset freezing against non-state actors breaches the right to judicial review, as well as the presumption of innocence. If this practice it is to continue at all, methods that make it fully compatible with the rule of law must be adopted. Especially, their renewal ad aeternum should not be possible.

Gender quotas in politics: the Greek system in the light of EU law

Abstract: Positive action is currently gaining momentum in the European anti‐discrimination discourse and policy‐making as a necessary and effective tool to achieve the goal of full and effective equality in employment. Gender quotas in politics, however, are thought to remain outside the normative scope of Community law, the dominant view being that candidature for elected public office does not constitute employment in the sense of the relevant provisions. This article seeks to examine the Greek quota system for women in politics in its dialectical relationship to the general equality discourse and with reference to the current normative framework in Europe. The aims are threefold: to assess the legality of positive action in favour of women in politics from the point of view of EU law, to evaluate the effectiveness of the Greek system in achieving its gender equality goals, and to identify the problems that quotas in politics may pose with regard to the principle of democratic representation. It will, thus, be argued that positive measures in politics, though generally compatible with the fundamental principles of justice and representative democracy, may nevertheless be inadequate—at least in their current form—to provide effective solutions to the unequal distribution of social and political power.

'New Governance' in European Corporate Law Regulation as Transnational Legal Pluralism

Abstract: The present transformation of European corporate governance regulation mirrors the challenges that have been facing the EU's continuously evolving polity, marked by tensions between centralised integration programmes, on the one hand, and Member State's embedded capitalisms, path-dependencies and rent-seeking, on the other. As longstanding concerns with remaining obstacles to more mobility for workers, services, business entities and capital in recent years are aligned with post-Lisbon commitments to creating the world's leading competitive market, European corporate governance regula- tion (ECGR) has become exposed to and implicated in a set of highly dynamic regulatory experiments. In this context, 'New Governance' offers itself as both a tentative label and immodest proposal for a more responsive and innovative approach to European law making. The following article assesses the recently emerging regulatory forms in ECGR as illustrations of far-reaching transformations in market governance. The arguable parallels between the EU's regulatory transformation in response to growing legitimacy concerns and the recurring question about whose interests a business corporation is intended to serve, provide the framework for an exploration of current regulatory trajec- tories in European corporate law that can most adequately be understood as a telling example of transnational legal pluralism.

Free Movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice

Abstract: The adoption of European Community (EC) Directives in the field of legal migration has been accompanied by the introduction of intra‐community mobility rights. This new kind of right is characterised by specific features with regard to free movement rights enjoyed by European Union (EU) citizens. Besides, existing mobility rights for third country nationals (TCNs) raise some important problems with regard to their legal configuration and to their relationship with other fields of Community law. After having addressed these issues, it will be argued that the current regulation of mobility rights for TCNs does not fulfil the requirements of systematic coherence, and does no meet the need to grant a level of free movement that encompasses the evolution of harmonisation in the field of the Area of Freedom, Security and Justice.

A Preliminary Perspective of Negotiations of EU–China PCA: A New Bottle Carrying Old Wine or New Wine or Both?

Abstract: The EU–China Partnership and Cooperation Agreement (PCA) is a relatively new type of agreement between the EU and a third country, and its negotiation and conclusion will bring about a new landscape for the comprehensive strategic partnership between the two sides. However, owing to the broadness, importance and complexity of EU–China relations, and the unique multiple‐level governance within the EU itself, the negotiation and conclusion of the new PCA deems to be a hard and time‐consuming process. In light of the EU internal aspects, the new PCA seems to be related to several treaty‐making competences and procedures, thus probably with the form of a mixed agreement as the final outcome. In terms of substantive issues, market access, transparency, intellectual property rights, China's full market economy status, abandonment of embargo on arms sales and high‐tech trade, democracy, human rights, rule of law, good governance and dispute settlement clauses, etc are all inevitably the tough and core issues. Nevertheless, it is believed that both sides will strive to lay down a systematic, stable and sustainable treaty law basis for a comprehensive EU–China strategic partnership in the spirit of seeking commonality, mutual respect and trust, and equal consultation.

The self-referential European polity, its legal context and systemic differentiation: theoretical reflections on the emergence of the EU's political and legal autopoiesis

Abstract: This article starts by summarising major theoretical debates regarding European polity and governance. It highlights the role of statehood in those debates and suggests moving beyond the constraints of institutionalist and constructivist perspectives by adopting specific notions from the theory of autopoietic social systems. The following part describes the EU political system as self-referential, functionally differentiated from the system of European law, and internally differentiated between European institutions and Member State governments. Although the Union transgresses its nation-state segmentation, the notions of statehood and democratic legitimacy continue to inform legal and political semantics of the EU and specific responses to the Union's systemic tensions, such as the policy of differentiated integration legislated by the flexibility clauses. The democratic deficit of instrumental legitimation justified by outcomes, the most recent example of which is the Lisbon Treaty, subsequently reveals the level of EU functional differentiation and the impossibility of fostering the ultimate construction of a normatively integrated and culturally united European polity. It shows a much more profound social dynamics of differentiation at the level of emerging European society—dynamics which do not adopt the concept of the European polity as an encompassing metaphor of this society, but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system.