Showing papers in "European Law Review in 2009"

Due process in EC competition cases: A distinguished institution with flawed procedures

Abstract: This article contends that the European Commission’s procedures for enforcing competition law are inadequate and do not match the importance and prestige of the institution as a world leader in antitrust enforcement. The topic is especially urgent due to the heavy consequences of being found to have infringed competition rules, the punitive and adjudicatory nature of the process, and the increasingly important case-law of the European Court of Human Rights. The article identifies three weaknesses in the current system: the adoption of a decision finding guilt by 27 political appointees who have not heard or studied the evidence; the lack of any hearing before a decision-maker; and the fact that the same case team in the Commission handles both the investigation of the case and the reaching of a decision. An institution as talented and prestigious as the Commission does not deserve such unique, and uniquely unsatisfactory, procedures. This article suggests some palliatives which would not necessarily involve Treaty change but which would endow Europe’s premier competition authorities with better processes. It is proposed that the determination of the facts be made by a qualified person or trio of persons who would hear both prosecution and defence on equal terms, would reach a conclusion on the factual and legal soundness of the accusations, and would then pass to the College of Commissioners a draft decision for endorsement or rejection. The author submits that the Commission ought to act before it is faced with a negative finding by a competent court about its current practices.

Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos

Abstract: Contrasts the approach taken by the Advocates General and the European Court of Justice in Commission of the European Communities v Italy (C-110/05) and Aklagaren v Mickelsson (C-142/05) regarding the extent to which national rules restricting the use of goods were measures having equivalent effect to quantitative restrictions on imports. Considers whether the "certain selling arrangements" criterion laid down by the European Court of Justice in Criminal Proceedings against Keck (C-267/91) has been replaced by a market access test.

The European Central Bank before the European Parliament: Theory and practice after 10 years of monetary dialogue

Abstract: Since its establishment in 1998, the European Central Bank (ECB) has come of age. During this period, its legal framework has been put to the test sufficiently to allow for a proper assessment of the working of this system in practice. This article focuses on the relationship between the ECB and the only directly democratically elected Community institution that is the European Parliament (EP). In doing so, the authors are inspired by the well-established line of research in US academic writing on the relationship between the US Federal Reserve and Congress. What emerges from this analysis is that the relationship between the ECB and the EP in what has become known as the monetary dialogue has significantly matured over time. The focus of parliamentary scrutiny has shifted from the ECB’s ability to maintain price stability, uncertainty about the Bank’s general mission and discomfort with the level of transparency of its decision making process to more general discussions on economic policy. However, apart from the fact that the EP’s instruments to discipline the ECB are limited, serious doubts can be raised as to the extent to which this dialogue actually amounts to an effective review of the performance of the ECB. The Treaty of Lisbon, if and when it comes into force, will not substantially alter the current practice.

Laval's regulatory conundrum: Collective standard-setting and the Court's new approach to posted workers

Abstract: This analysis considers the relationship between the Court of Justice's new approach to posted workers in the Laval line of cases and collective standard-setting in host-states. Drawing on important national examples, including ongoing UK industrial disputes, it argues that this examination reveals a regulatory conundrum: the impossibility of meaningful coexistence of the Court's new approach and collective standard-setting in host states for posted workers. It considers how to resolve this regulatory conundrum.

From past imperfect to future perfect? A longitudinal study of the Third Pillar

Abstract: Harding, Christopher, Baker, Estella, (2009) 'From past imperfect to future perfect? A longitudinal study of the Third Pillar', European Law Review 34 (1), pp. 25-54. Keywords: Competence; Criminal law; EC law; European Community; Justice and home affairs

The third wave of third pillar law: Which direction for EU criminal justice?

Abstract: After a period of relative stagnation, the past few months witnessed the adoption of a plethora of legislative instruments under the third pillar. These instruments can be seen as the third wave of third-pillar law, following the first wave of measures adopted post-Maastricht and the second wave of measures adopted post-Amsterdam and Tampere. The third wave of third-pillar law extends to most major areas of European integration in criminal law. New legislation involves the harmonisation of substantive criminal law (including the fields of terrorism, organised crime and racism and xenophobia), mutual recognition (with measures such as the European Evidence Warrant and legislation on the recognition of probation decisions and the transfer of sentenced persons), the work of EU criminal justice bodies such as Europol and Eurojust, and the development of standards to regulate the proliferation of third pillar mechanisms to collect, analyse and exchange personal data. By analysing the background and content of these instruments, this article will assess their impact on the future development of EU criminal law and justice.

Regulatory Competition in European Company Law after Cartesio

Abstract: The aim of this article is to locate the Court of Justice's recent decision in Cartesio (C-210/06) in its free movement context, and to assess its likely effect in relation to the development of regulatory competition in European company law. The article has three main parts. In the first, we provide a brief overview of the free movement jurisprudence of the Court. In the second, we discuss the way in which the Court has dealt with the free movement of companies, paying close attention to the Cartesio ruling. The third section explores the possible impact of Cartesio on the development of regulatory competition in European company law. While there is a realistic fear that Cartesio may herald an increase in potentially damaging regulatory competition--specifically in the market for reincorporations--the impact of the judgment will ultimately depend on the way in which Member States, Community institutions, courts and controllers of companies react to the challenges it creates.

Terrorism and the ECJ: Empowerment and Democracy in the EC Legal Order

Abstract: In its judgment in Joined Cases C-402/05 P & C-415/05 P Kadi & Al Barakaat International Foundation v. Council and Commission, judgment of 3 September 2008, the ECJ held that the Community has competence to adopt economic sanctions not only against States but also against individuals on the basis of Articles 301, 60 and 308 of the EC Treaty. It also held that UN Security Council resolutions are binding only in international law and cannot take precedence over the Community's internal standards for the protection of fundamental rights. The judgment raises some profound constitutional questions pertaining to the competence of the Community, its relationship with international law and the scope of fundamental rights protection. In parallel, in a number of cases culminating in its judgment of 23 October 2008 in Case T- 256/07 People's Mojahedin Organisation of Iran v. Council (OMPI II), the CFI has annulled anti-terrorist sanctions imposed by the European Community indicating a strong adherence to process rights. The purpose of this contribution is to discuss the above case law and its implications.

The legal effect of Directives: Policy, rules and exceptions

Abstract: This article reconsiders the legal effect of Directives for private parties within Community law. This is a vexed issue that has generated significant academic commentary and much case law. The qualifications and exceptions to the basic proposition that Directives do not have horizontal direct effect continue to grow, thereby rendering this overall area even more complex than it was hitherto. The article seeks to shed light on this topic by subjecting to critical scrutiny the policy underlying the “core rule” that denies horizontal direct effect to Directives, and considering whether the judicially created exceptions or qualifications to that policy are consistent with it.

The Ambiguity of Social Europe in the Open Method of Coordination

Abstract: The development of the open method of co-ordination from the extraordinary Lisbon European Council in 2000 has been considered by many academic and institutional commentators as a break-through for Social Europe. Yet what kind of breakthrough is it? While many "OMC optimists" have seen its development as providing a new space for social policy outside a restrictive Treaty structure, others have pointed to the integration of the OMC within the Lisbon Strategy as evidencing a new set of economic constraints on the welfare state's development. This paper will argue that there is a deep ambiguity within the OMC's social role; while on the one hand, it can be seen as "colonising" - entering national social institutions ever further into an EU framework dominated by market actors - on the other hand, it can be posited as "reflexive", as encouraging both competing social and economic discourses, and inter-dependent national polities, to reflect upon the objectives of each other.

A healthy approach to services of general economic interest? The BUPA judgment of the Court of First Instance

Abstract: Discusses the Court of First Instance ruling in British United Provident Association Ltd (BUPA) v Commission of the European Communities (T289/03) on whether a risk equalisation scheme, introduced in Ireland to facilitate the opening up of the private medical insurance market, contravened either EC Treaty art.86(2) or state aid rules. Assesses the implications of the ruling for services of general economic interest (SGEIs), looking at legislative competence, the minimum criteria for SGEIs, proportionality and the application of the Altmark criteria.

Capturing the Cartel's Friends: Cartel Facilitation and the Idea of Joint Criminal Enterprise

Abstract: Harding, Christopher, (2009) 'Capturing the cartel’s friends: Cartel facilitation and the idea of joint criminal enterprise', European Law Review 34 (2), pp. 298-309. Keywords: Cartels; EC law; Joint enterprise; Penalties

The right to life and abolition of the death penalty in the Council of Europe

Abstract: This article investigates the prima facie paradox of the endorsement of the death penalty in Art.2(1) of the European Convention of Human Rights, with the “abolition” of the punishment provided by Protocol No.6 and Protocol No.13. It will analyse the evolution of the Council of Europe’s abolitionist discourse which led to this juxtaposition, and identify whether there are unified or heterogeneous approaches to the punishment by the Committee of Ministers, the Parliamentary Assembly, and the judicial organs of the Commission and Court. What emerges is a conflict between the radical expansion of the boundaries of human rights by the Assembly, with the Committee’s demonstration that the shadow of state sovereignty constantly attempts to thwart the progress. Consequently, the Court has bowed to the need for Member State acceptance of provisions for amendment of Art.2(1) and has not applied any purposive application of the “living instrument” doctrine. However, the gradual solidification of the Council’s abolitionist position has produced the possibility of legislative abolition through the Protocols, but the text of Art.2(1) remains. So is the death penalty abolished or not? As contemporary practice within Member States affirms that it is, is textual amendment now a moot issue?

A case study of soft law in EU external relations: the European Neighbourhood Policy

Abstract: This article examines the soft legal nature and function of the instruments constituting the European Neighbourhood Policy. [ENP] Three distinct stages in the development and execution of this policy are identified, and it is argued that these phases explain the dominant functions of soft instruments, as well as their quality as hard or soft law. In its conclusion, this article evaluates the effectiveness and legality of using soft law to conduct the ENP, and flags up the essential elements for assessing the use of soft law in EU external relations more generally.