Showing papers in "The Maastricht Journal of European and Comparative Law in 1994"

Legislating to Employ People with Disabilities: the European and American Way

Abstract: This article, written in 1994, argues that there is a ‘distinct philosophical and legal difference’ between the approach to promoting the inclusion of persons with disabilities in the open labour market adopted in the United States and that relied on in Europe. It argues that, in the United States, the core of the problem of low employment of people with disabilities is viewed as discrimination, and the legislative response has been the adoption of disability non-discrimination legislation. In contrast, in Europe non-discrimination legislation has not been extended to cover persons with disabilities, but instead the legislative response to this low employment is quota schemes, whereby employers are obliged to ensure that a certain percentage of their labour force are made up of disabled persons. The article argues that the assumptions underlying non-discrimination law and quota schemes are incompatible with each other and that the two approaches are based on the civil rights model on the one hand and the welfare model on the other. The article also argues that the two approaches send out fundamentally incompatible messages about the abilities of workers with disabilities.

The case-law of the European Court of Justice on direct taxes: variations upon a theme

Abstract: In a steadily increasing number of cases the EC Court of Justice is being asked to assess the compatibility with Community law, and especially with the EC Treaty's provisions on free movement, of national rules in the field of direct taxation. Some of the Court's judgments on this subject have attracted strong criticism. One of the objections sometimes heard is that these days the Court seems more willing to take into account Member States' national interests in fiscal matters than it was in the past. 1

Policy Rules in German Law

Abstract: This contribution deals with the doctrine and case law in Germany on policy rules, or, to use the German terminology: Verwaltungsvorschriften. I 2 First, the administrative rules which are considered Verwaltungsvorschriften will be listed (§ 2). An investigation follows into the questions: what binding force do Verwaltungsvorschriften have, on what is this binding force based, and what is the difference between Verwaltungsvorschriften and statutory instruments (Rechtsnormen, in German) in these respects? (§ 3). To conclude, some comparative remarks are made contrasting Verwaltungsvorschriften in German law with policy rules under Dutch law (at present and in the future under the third stage of the Dutch General Administrative Law Act) (§ 4),

Private Schools and State Intervention

Abstract: What exactly is the proper balance between church and state; to what extent is a state allowed to interfere with and/or to subsidise private schools which have been established on a religious basis? Does the principle of separation of state activities and religion imply that no state intervention whatsoever is permitted in religious activities? These questions (and numerous more), fundamental to democratic states, have been given many different answers. Sometimes it has been argued that the state ought to support and subsidize religious schools; in other countries the separation between state and church has led to the situation where any state intervention is considered an unlawful violation of this constitutional principle, and that no religious activity takes place in public (state) schools. Recently, the French Conseil Constitutionnelwss confronted with this very issue.

Self-Restraint of Discretionary Authority in French Administrative Law

Abstract: Like other legal systems French administrative law recognizes the phenomenon whereby the administration lays down general rules for the performance of tasks incumbent upon it. Whilst these general rules cannot be characterized as legislation in the true sense of the word, they can be characterized by the fact that they lack a legislative basis. They can be compared with what in Dutch administrative law is referred to as, beleidsregels. In this article I will discuss various aspects connected to the emergence of general rules in French administrative law. General rules will be presented under terms such as circulaire, noted'instruction, instruction de service and directive, although these are not the only names under which general rules can be found in French administrative practice. Therefore, the different terms under which general rules can be presented, will be defined in § 2.

Disability: A Human Rights Issue

Abstract: This editorial to the Maastricht Journal of European and Comparative Law, written in 1994, reports on the Second European Day of Disabled People held on 3 December 1994 and on a report on Human Rights and Disabled People. The editorial discusses disability from a human rights perspective and discusses a potential Treaty amendment to allow the EEC to adopt legislation to combat disability discrimination.

Towards a European Private Law? A Review Essay

Abstract: P .-C. Muller-Graff (ed.), Gemeinsames Privatrecht in der Europiiischen Gemeinschajt, Nomos, 1993,500 pages, hardback, 148 DM De Ly, Europese Gemeenschap en privaatrecht, Tjeenk Willink, 1993, 63 pages, paperback, f 30 E.H. Hondius, Naar een Europees burgerlijk recht, pages 1-31 and Keus, Europees privaatrecht. Een bonte lappendeken, both in Preadvies Vereniging voor Burgerlijk Recht 1993, Vermande, 1993, pages 31-82, paperback f 29.50

Towards a European Media Law

Abstract: Traditionally the regulation of the press and broadcasting media has been the responsibility of nation states. That is not surprising, bearing in mind the crucial role the media have played, and continue to play' in the formation of attitudes within largely national communities. Indeed, the famous nineteenth century English essayist and historian, Thomas Carlyle, characterized the Press as the 'Fourth Estate', regarding its contribution to the shape of contemporary politics as even more important than that of the three branches of government. 1 These days politicians in democratic countries regard their access to, and treatment by, television as crucial to their chances of electoral success. It is small wonder, therefore, that regulation of the broadcasting media has often been a matter of intense political and constitutional controversy in European countries. In France, for example, the debates on the 1984 Press law and the 1986 Broadcasting law have been among the most bitter in the history of the Fifth Republic, while the rulings of the Conseil constitutionnel on these measures were the longest in its history. The regulation of private broadcasting in Italy was so contentious that governments found it impossible to secure the passage of legislation for nearly fifteen years after the Corte costituzionale had first called on the legislature to act. 2

Jurisdiction Clauses in Transnational Company Relationships. Art. 17 Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters. : Jurisdiction clause in the articles of association of a German Holding-AG: Case C-214/89 Powell Duffryn plc. v. Wolfgang Petereit (1992) ECR 1755: pragmatism for the benefit or to the detriment of legal certainty?

Abstract: Although the concept of a jurisdiction clause in articles of association is not completely foreign 1 to domestic international jurisdiction rules, this is a first for the regime of the Brussels Convention. It is expected that the jurisdiction clause discussed in this article will be 'copied' in the articles of association of other share companies, especially in view of a growing intensification of inter-Community cooperation. Enough reason, therefore, to examine the matter in a little more detail. As a result of the autonomous