Showing papers in "European Law Review in 2005"

Risk, anxiety and the European mediation of the politics of life

Abstract: Most EU law is concerned with the government of risk. This poses challenges for traditional ethical yardsticks, which base the unethical nature of the act in the perpetrator's knowing that certain consequences will flow from her actions. With risk it is impossible, however, to know what consequences will follow from an action. Drawing upon a case study from the regulation of genetically modified food, this essay suggests an additional ethic, that of mediation, for EU law. Government of risk involves two forms of politics. One is the politics of hazard, which embraces uncertainty in order to realise new public goods. The other is the politics of anxiety, which rejects uncertainty to protect the vulnerability, status and singularity of the individual subject. Ineluctably opposed to one another, each politics has virtues and pathologies. A government of risk must contain both and mediate between both. Much angst with EU law, it will be suggested, derives from its paying insufficient attention to the terms of this mediation.

Why go to court in Europe? An analysis of cartel appeals 1995-2004

Abstract: Harding, Christopher; Gibbs, Alun, (2005) 'Why Go to Court in Europe? An Analysis of Cartel Appeals, 1995-2004', European Law Review 3, pp. 349-370. RAE2008

Twenty years after Von Colson: the impact of "indirect effect" on the protection of the individual`s community rights

Abstract: The introduction, some 20 years ago, of the concept of “indirect effect” by the European Court of Justice in Von Colson represents a fundamental development of the principle of “effective judicial protection”. Two decades on, the Court's case law clearly illustrates that “indirect effect” has played a key role in protecting citizens' rights, particularly in the absence of the horizontal direct effect of Directives. This has recently been confirmed by the Court's judgment in Pfeiffer. It is argued in this article that the scope of the principle of indirect effect has not been restricted by Arcaro and that a clearer distinction is possible between the principles of “incidental horizontal direct effect” and “indirect effect”. The Court has rightly limited the latter concept in order to comply with the rule of law and the principle of legal certainty, but legal certainty would be further improved if the Court indicated more clearly the point in time when the duty arises for national courts to interpret national law to comply with Community law. Furthermore, the (alternative) possibility of national courts relying on the principle of state liability as a means of protecting the rights of individuals is unlikely to be a panacea for all ills. Although the court seems prepared to further develop the principle of “effective judicial protection” where appropriate, the ultimate guarantor of Community rights is the national court. Recent UK caselaw is examined with this in mind. The unwillingness of the House of Lords in White to apply the principle of indirect effect to a private law agreement purporting to give effect to Community law is criticised and should be reviewed in light of the Court's ruling in Evans.

The bride of Messina: Constitutionalism and democracy in Europe

Abstract: An ongoing debate persists about whether the European Union is the predictable product or the unintended consequence of intergovernmental agreements. This Article argues that both sides in this debate still miss something important and therefore fail to understand the nature of constitutionalism and democracy in Europe. The current debate embraces a rational actor model, in which different institutions and actors make rival claims based on their respective rational self-interest. This Article, in contrast, maintains that the self-conceptions and principled commitments of individuals making decisions within particular institutional and professional settings have materially shaped European integration. In particular, individual actors have "recalibrated" the European enterprise, shifting the project away from member state governments and toward individuals as the locus of normative concern. Understanding European constitutionalism in this way suggests that constitutionalism is alive and well in Europe - even after the current rejection of the proposed constitutional Treaty. European constitutionalism does not depend on a formal founding moment. Instead, constitutionalism has been woven into the fabric of European integration by repeated acts of interpretation on the part of innumerable participants over many years. Understanding European constitutionalism in this way affects our assessment of European democracy. The European project is not, as the intergovernmental view claims, democratically legitimate by virtue of the Union's narrow scope of activities and dependence on member states. The Union reaches too deeply into national policies to rely on member state governments alone to legitimate the European enterprise. Therefore, in assessing the promise and perils of European democracy, we must also examine critically the supranational forms of democratic engagement to which the Union gives rise. Finally, understanding European constitutionalism and democracy as set forth here has important normative implications. It informs how judges, bureaucrats, politicians, and citizens can and should take democratic values into account when interpreting the current European legal order and building for its future.

Work and Private Life: Sidabras and Dziautas v Lithuania

Abstract: The European Convention on Human Rights has traditionally been regarded as a civil and political rights instrument. Recently, a new method of interpretation, which came to be known also as the integrated approach to human rights, is reflected in decisions of the European Court of Human Rights. This approach is based on the idea that the enjoyment of civil and political rights is rendered meaningless if social rights are neglected and that social entitlements are as intrinsically valuable as the interests underlying civil and political rights. The present piece analyses a recent judgment of the Court, Sidabras and Dziautas v. Lithuania, which is likely to be regarded as a paradigm example of the integrated approach, and explores its implications for the interpretation of the ECHR. It argues that the Court has to address the social rights implications of the Convention under a coherent theory of adjudication according to principles that lie behind the ECHR.

Access to content by new media platforms: A review of the competition law problems

Abstract: The paper seeks to provide a discussion of the competition law issues raised by access to premium content (essentially blockbusters and football rights) by content delivery operators with a special emphasis on new media platforms. A significant amount of literature has been published on the application of competition rules to premium content rights agreements, but the specific obstacles encountered by new media platforms have been relatively unexplored. This paper seeks to fill this gap in the literature. The European Commission (hereafter, the Commission) has recognised in its decisions that premium content is an "essential input" for operators active in the delivery of audio-visual content. There is indeed no substitution possible with other less attractive forms of content. In fact, premium content such as major football events represents "stand-alone" driver content for pay-TV operators. Absent access to such content it is very difficult for a content delivery operator to gain or retain market shares. Access to premium content is thus a matter of life or death for such operators. Yet, getting access to premium content is not an easy matter. First, premium content is scarce as there are only a few blockbusters and a limited number of premium sport events every year. Moreover, premium content rights contracts usually involve some form of exclusivity pursuant to which dominant pay-TV operators often manage to monopolize such rights for several years at the expense of weaker competitors. The combination of scarcity and exclusivity has translated into a spiralling of the costs involved in buying premium content. For instance, while in 1992, broadcasters paid 434 million euros for the TV rights of the English Premier League, in 2000, they paid 2,6 billion euros for only three seasons. The lack of access to premium content represents a significant handicap for new entrants, such as new media platforms. If these platforms want to gain market share, they need to show programmes, which are able to compete with the content shown by dominant pay-TV operators. Access foreclosure to premium content would thus not only prevent new entries from taking place in the highly concentrated pay-TV market, but would also affect technological developments and consumer choice as the latter would be prevented from watching their favourite programmes on the platform of their choice. Thus, in a number of policy speeches, Commission officials have insisted on the importance that new media platforms gain access to premium content. The main argument followed throughout the paper is that, while recent Commission decisions contain remedies, which will help new media platforms to gain access to premium content, such remedies are insufficient to create a level playing field in the market for the acquisition of such content. Numerous anti-competitive practices continue to plague this market and further competition law intervention is thus required.

Locus standi of private applicants under the EU constitution: Preserving gaps in the protection of individuals right to an effective remedy

Abstract: This article examines the rules governing locus standi of private applicants in actions for annulment of European Union measures under the regime of the EU Constitution. It aims to determine whether an individual’s right to an effective remedy is accorded better protection under the Constitution than under the EC Treaty. The article argues that the Constitution does not fundamentally change the system of remedies established by the EC Treaty. Consequently, many of the problems that currently arise for private parties attempting to gain direct access to the Community Courts have been preserved. Furthermore, new problems, stemming from the novel distinction in the Constitution between legislative and regulatory acts, have been created. Therefore, while the Constitution makes some improvements to private applicants’ prospects of initiating proceedings directly in the Courts of the Union, it fails to protect the rights of individuals to an effective remedy comprehensively. The article can be accessed electronically on Westlaw - World Journals.