Showing papers in "European Law Review in 2010"

EU Accession to the ECHR: Implications for Judicial Review in Strasbourg

Abstract: The accession of the European Union to the ECHR raises fundamental questions surrounding the protection of individual rights in the Strasbourg court and the autonomy of EU law. It is argued that any solution should ensure an effective protection for the individual applicant. Thus the appropriate respondent in Strasbourg should be the party which has acted in the concrete case as it can be easily identified. The European Union’s autonomy can be preserved by allowing it to join as a co-respondent. Since the individual has no influence over whether a national court makes a reference under art.267 TFEU, the lack of such a reference should not lead to the inadmissibility of the complaint.

Risk and beyond: EU regulation of nanotechnology

Abstract: The regulation of risky technologies is not limited to questions amenable to technical risk assessment, but also engages a range of broader social and ethical concerns. The European Union has, apparently, fully embraced the notion that broader social and ethical concerns are a legitimate part of the regulatory process, and certain institutional developments (e.g. enhanced public participation, the consultation of experts in ethics) can be interpreted as an effort to bring these broader issues to the attention of decision-makers. However, this article argues that when we examine regulation closely, safety is generally the only value that competes with the presumed economic benefits of innovation. The broader social and ethical issues either disappear, or as with socio-economic analysis in chemicals regulation, are likely to be used to justify otherwise unacceptable levels of risk. In this article, I examine the regulation of nanotechnology in the European Union, particularly the regulation of nanomaterials as chemicals, food and cosmetics. I argue that the institutional innovations introduced to bring broader social and ethical issues into regulatory decision-making (including an explicitly political stage to decision-making, as well as public participation and ethical expertise) are likely to disappoint for as long as the regulatory framework is narrowly framed around risk.

ADR: effective protection of consumer rights?

Abstract: In this article, the preliminary ruling in Alassini is analysed in the context of how the content and enforcement of new consumer citizenship rights are evolving in liberalised network sectors of the EU. The article examines the use made of the general principles of EU law and fundamental rights to test the compatibility of an Italian law making pre-trial mediation mandatory in telecoms disputes involving the universal service obligations (USOs) established in EU law. It sheds further light on the EU principles of effective judicial protection and national procedural autonomy. The impact of the judgment is then discussed, first, in the light of English legislative and judicial approaches to ADR and, second, in the context of the legal enforcement of USOs in the EU

Multi-level Governance in competition policy: the European competition network

Abstract: This article analyses the general characteristics and practical cooperation mechanisms of the European Competition Network (ECN) as well as the initial experiences of policy enforcement through this network in the light of and in response to the European Commission Report on the Functioning of Regulation 1/2003. In general, this analysis is positive regarding the initial experiences of ECN. The article, however, finds significant accountability and due process problems caused in particular by the opacity of network management. Primarily, the article argues that, as an unintended consequence of Modernisation, EU competition policy has become vulnerable to the general systemic problems of multi-level governance.

Another classic of EU sports jurisprudence: Legal implications of olympique lyonnais sasp v olivier bernard and newcastle UFC (C-325/08)

Abstract: The core of this article rests with the argument that the Court in Bernard has followed the suggestions of the Advocate General regarding accepted models of training compensation. Furthermore, it is recognised that whereas Bernard does not depart from the well-established analytical framework applied in free movement cases, it does depart from Bosman on the point of the Court's appraisal of the suitability of training compensation within the confines of that framework. This gives some weight to the otherwise symbolic and unnecessary reference to art. 165(1) TFEU at [40] of the judgment. The Court's justification of the restrictions on free movement for out-of-training-contract players is contrary to the conclusions reached in the Bosman judgment, in which the same restrictions for out-of-professional-contract players were deemed illegal, can be taken as both an exception to the prohibition on age discrimination in EU law and the prima facie validation of current FIFA Regulations. © 2010 Thomson Reuters (Legal) Limited and Contributors.

Wavering between centres of gravity: Comment on Ireland v Parliament and Council

Abstract: Recent technological developments have brought into question the protection of personal data and individual privacy. This contribution focuses on the harmonisation of ‘data retention’ rules in the European Union (EU), in particular, the controversy surrounding the adoption and implementation of the Data Retention Directive (2006/24/EC). It first considers the initiation of secondary EU legislation on data retention and the human rights implications of the retention of ‘traffic data’ for the purpose of law enforcement. It then discusses challenges against domestic implementation legislation that have been initiated by NGOs. The analysis leads to the conclusion that harmonisation of the length of time that telecom operators and internet providers must retain data, along with other measures regarding the prosecution of crime, have not been met with success. These measures have rather generated uncertainty as to the form that data retention should take vis-a-vis the permissible degree of centralisation of power to the EU and the adoption of legislation that allows for abuses of retained data contrary to the rule of law and fundamental rights. With an ECJ preliminary ruling pending on the constitutionality of Directive 2006/24/EC, this debate is all more interesting.

Free movement of third-country nationals in the European Union: The illusion of inclusion

Abstract: In recent years certain categories of third-country nationals have been endowed with free-movement rights, a privilege previously reserved to EU citizens and their family members. This article critically analyses the mobility provisions contained in the Directives on long-term residents, students, researchers and highly-qualified migrants and their implementation at the national level. It argues that by subjecting third-country nationals to numerous, nationally-determined requirements, the very raison d'etre of the mobility provisions is undermined. Rather than enjoying free-movement rights on the basis of a status acquired under Union law, third-country nationals continue to be subject to national discretion when intending to move to another Member State. The limited scope of the mobility provisions and their restrictive application in the Member States constitutes a missed opportunity to generate full inclusiveness of third-country nationals in the internal market. It also contradicts the objectives formulated in the 2009 Stockholm Programme to approximate the rights of legally resident third-country nationals to those of EU citizens and to encourage labour migration as a way of increasing the European Union's competitiveness. The article concludes by suggesting ways in which the effectiveness of mobility rights of third-country nationals could be improved.

The European Union's Economic Constitution under the Lisbon Treaty: Soul-Searching Shifts the Focus to Procedure

Abstract: The debate on the economic orientation of the European Union can be traced back to the negotiations of the Treaty of Rome. Increasingly, scholars and recent case law start from the assumption that market goals and social-policy goals are on a par. A slight tendency in favour of the market has recently emerged, apparently linked to the disparities in working conditions between the old and new Member States following enlargement. Working from the proposition that these two goals enjoy equal status as expressly stated by the European Court of Justice (ECJ) under the Nice Treaty, this contribution analyses the consequences resulting from the plurality of goals under the Lisbon Treaty. I will argue that the market goals and social-policy goals continue to enjoy equal status with the entry into force of the Lisbon Treaty, though the social element will be made more visible and bring about new challenges connected to the public-private divide and the notion of rights and principles. Against this backdrop, I contend that the major future challenges will be situated at the institutional, methodological and procedural level. Two aspects will be singled out in this regard: on the one hand, the increase in legal sources for social-policy and economic goals calls for rules strengthening the coherence and consistency of provisions that implement both goals. On the other, the theoretical foundations of balancing mechanisms and of judicial reasoning will have to be refined with a view to distinguishing technical choices from value judgments.

"Effective Judicial Protection" of Human Rights After Lisbon: Should National Courts be Empowered to Review EU Secondary Law?

Abstract: The article carries out a structural assessment of the EU system of protection of human rights after the entry into force of the Treaty of Lisbon. It compares the method of protecting human rights in EU law before and after Lisbon, and argues that the question of whether amendments introduced by the new Treaty ensure that the system ofprotection is complete cannot be answered unequivocally. It is only when the Court of Justice has had the opportunity to interpret art.275 TFEU that we will be able to determine whether all gaps in protecting human rights have been filled. Thus, the article advocates a return to the proposition made by A. G. Mengozzi in Gestoras and Segi as a solution to the potential problem of "incompleteness" of remedies. It explains that recognition of national courts' power to review EU secondary-law not only complies with the existing doctrine but also improves the status of human rights in EU law and, despite suggestions to the contrary, leaves the position of the Court of Justice as the sole judicial arbiter of Union law intact. © 2010 Thomson Reuters (Legal) Limited and contributors.

European networks in the regulation of biotechnologies

Abstract: The article examines the emergence of networks of public administrations in the regulation of biotechnologies. The control of risks to public health and the environment posed by biotechnological products is within the remit of public bodies which rely upon scientific opinions in order to adopt the most appropriate regulatory measures.By analysing the different science-based networks created in European law, this article argues that this emerging organisational model encourages both independent and peer-reviewed assessments and broad consensus on highly technical and contentious scientific issues. However, the specificities of the internal decision-making of these networks require special scrutiny, and transparency should be promoted in order to foster public accountability of the regulatory regimes in which these networks operate.