Showing papers in "The Maastricht Journal of European and Comparative Law in 2013"
TL;DR: In this article, the authors examine the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by the European Parliament.
Abstract: This article examines the engagement by the Court of Justice of the European Union (CJEU) with the EU Charter of Fundamental Rights over the period since the Charter was made formally binding by th...
53 citations
TL;DR: In this paper, a typology of the possible effects of the withdrawal of a Member State from the EU is developed, based on the article 50 TEU, which refers to a negotiated, post-exit, relatio...
Abstract: This paper examines Article 50 TEU and develops a typology of the possible effects of the withdrawal of a Member State from the EU. Because Article 50 TEU refers to a negotiated, post-exit, relatio...
31 citations
TL;DR: In this paper, the Court of Justice rendered the judgment in Fra.bo, a case about the liability of a German private standards body under the free movement of goods, and the European Par...
Abstract: In July 2012, the Court of Justice rendered the judgment in Fra.bo, a case about the liability of a German private standards body under the free movement of goods. In October 2012, the European Par...
26 citations
TL;DR: The CJEU's judgment in Pringle as discussed by the authors saved the European Stability Mechanism from invalidity, given that the contrary conclusion would have precipitated further crisis in the financial markets, and it correctly identified the rationale underlying the no bail out rule, this being to prevent diminution in the incentive for financial probity by the Member States.
Abstract: The CJEU's judgment in Pringle saved the European Stability Mechanism from invalidity. The result was unsurprising, given that the contrary conclusion would have precipitated further crisis in the financial markets. The judgment is nonetheless highly interesting and not merely for those concerned with this aspect of EU law. This is because it contains much that is of more general relevance for the very nature of legal reasoning, and the blend of text, purpose and teleology that informs legal discourse. This article addresses two of the central claims made in the case. The first was that the ESM was in reality concerned with monetary policy and not economic policy and thus fell within the exclusive competence of the EU, with the consequence that the Member States had no capacity to make the ESM. The second and most important aspect of the applicant's argument was that the ESM infringed the rule against bail outs contained in the Lisbon Treaty. The CJEU also rejected this argument. It correctly identified the rationale underlying the no bail out rule, this being to prevent diminution in the incentive for financial probity by the Member States. The Court then concluded that the terms of ESM assistance entailed no such diminution. This conclusion is however problematic as will be seen in the article, and the reality is that result in Pringle can only really be sustained by the addition of a teleogical dimension to the Court's reasoning. A third dimension to the case concerned the ability of the EU institutions to participate in the ESM. Reasons of space mean that this is not examined in any detail in this article. In brief, the CJEU applied prior rulings to the effect that EU institutions are able to participate in agreements made outside the EU legal framework, provided only that they are compatible with EU law, and that the powers accorded to the EU institutions do not alter the essential character of the powers conferred on those institutions by the Treaties. The application of this rule may well have been defensible in relation to the ESM, but it nonetheless raises more general issues of principle and legitimacy that have not been explored. A subsequent article will consider the foundational, procedural and substantive issues posed by this rule.
25 citations
TL;DR: In this article, the authors present several economic criteria to help policy-makers in choosing between public and private enforcement of competition law, including the welfare losses caused by violations of the cartel prohibition may be better internalized by imposing fines rather than by bringing damages actions.
Abstract: Several economic criteria may help policy-makers in choosing between public and private enforcement of competition law. The welfare losses caused by infringements of the cartel prohibition may be better internalized by imposing fines rather than by bringing damages actions. Public agencies may possess information advantages and they may also be able to remedy the difference between the private and social motive to sue. Private enforcement may complement public enforcement by increasing deterrence and guaranteeing compensation. Both direct and indirect buyers should be given standing to bring damages actions. Given the reluctance to introduce US-style class actions, European policy-makers favour collective opt-in actions and representative actions brought by consumer associations. However, the participation rate of opt-in collective actions may remain too low and actions by consumer associations are also vulnerable to principal-agent problems. Moreover, private enforcement of competition law by consumer as...
25 citations
TL;DR: The decline, even the "end" of comparative law in the 21st century has recently been predicted as mentioned in this paper, however, this statement overlooks the vital and continuing role of comparative Law in the complex t...
Abstract: The decline, even the ‘end’, of comparative law in the 21st century has recently been predicted.1 However, this statement overlooks the vital and continuing role of comparative law in the complex t...
11 citations
TL;DR: In this article, the conditions under which Member States act within the scope of application of EU law when the Union has exercised its competence in the criminal 'Area of Freedom, Security and Order'.
Abstract: This article tries to pin down the conditions under which Member States act within the scope of application of EU law when the Union has exercised its competence in the criminal ‘Area of Freedom, S...
10 citations
TL;DR: In this paper, the Court of Justice's decision in Pringle1 not only on political grounds but also as an imaginative and exemplary fusion of diff erent interpretative methods to justify a course of action agreed by eurozone members to overcome apparent EU treaty obstacles to the provision of mutual financial assistance.
Abstract: Th is article is a reply to Professor Craig’s piece, published in this journal earlier this year, in which he appears to commend the Court of Justice’s decision in Pringle1 not only on political grounds but as an imaginative and exemplary fusion of diff erent interpretative methods to justify a course of action agreed by eurozone members to overcome apparent EU treaty obstacles to the provision of mutual fi nancial assistance. Th is reply will analyse the key aspects of the decision and the central arguments employed to justify them. Th e author argues that in Pringle the Court exploits, to the maximum extent, the vagueness and norm uncertainty in its general approach to legal reasoning, and probably to a point where legal reasoning no longer imposes any constraints on judicial making.
8 citations
TL;DR: In this paper, the authors highlight the progressive role played by the Court of Justice of the European Union together with the European Court of Human Rights in the ongoing recast process, particularly in terms of ensuring a higher standard of protection of basic human rights.
Abstract: A ‘Common European Asylum System’ (CEAS) based on the full and inclusive application of the Geneva Convention has been developed according to the principles and aims of the Tampere European Council in October 1999 (further elaborated by The Hague Programme adopted in November 2004). However, significant discrepancies and differences between Member States' asylum law and policy still exist, and it has yet to be effectively realized. A recast of the adopted series of important legislative measures harmonizing common minimum standards in the area of asylum is now ongoing. This article will highlight the progressive role played by the Court of Justice of the European Union together with the European Court of Human Rights in the ongoing recast process, particularly in terms of ensuring a higher standard of protection of basic human rights.
7 citations
TL;DR: In this paper, the evolution of loss of chance within French and Italian law is analyzed, and alternative proposals are sought, especially those formulated by some German scholars, given the proximity of Portuguese civil law to German civil law.
Abstract: Bearing in mind the judgments recently given by the Portuguese Supreme Court, which have recognized the right to be compensated for loss of chance for the fi rst time, this article sets out to discover the actual legal framework for this type of damage. In order to do so, the evolution of loss of chance within French and Italian law – the two mainland systems in which this damage has been generally accepted – will be analysed. Th is will be followed by a critical evaluation of the results accomplished. Dissatisfi ed with the traditional framework of loss of chance, alternative proposals will be sought, especially those formulated by some German scholars, given the proximity of Portuguese civil law to German civil law. Th e consequence is, on the one hand, the need to take into consideration the normative framing and the nature of the fi nal damage for which the compensation for loss of chance is a substitute and, on the other hand, the need to include loss of chance, when qualifi ed as an economic loss, in a system of civil liability with limited mobility and permeability as to value judgements.
6 citations
Journal Article•
TL;DR: In this article, the authors focus on the most common methods used to ascertain foreign law, and using a much larger sample of states, argue that there is little value in classifying diff erent approaches.
Abstract: It is in response to the need for certainty and consistency that systems of regulation and law are created to govern the conduct of people of a community, society, nation or state. With increases in the ease of cross-border movement and activity, as well as global communication, parties and courts are more frequently being exposed to systems of regulation and law that are foreign to them. Th is, in turn, creates uncertainty regarding not only the ability of national courts to correctly apply foreign law, but also the quality of evidence relating to the content of foreign law. Relevant studies conducted for the Hague Conference on Private International Law and the European Commission have classifi ed states according to their treatment and application of foreign law. Th e author of this article focuses instead on the most common methods used to ascertain foreign law, and using a much larger sample of states, argues that there is little value in classifying diff erent approaches.
TL;DR: The authors reviewed the evolution of the Economic and Monetary Union from its inception in 1992 with the Treaty of Maastricht to the most recent reforms adopted in 2013 to respond to the eurocrisis.
Abstract: This paper reviews the evolution of the Economic and Monetary Union from its inception in 1992 with the Treaty of Maastricht to the most recent reforms adopted in 2013 to respond to the eurocrisis....
TL;DR: In the early years consumer protection was an exception to the logic of the internal market as mentioned in this paper, and since the case of Dassonville in 1974, the CJEU has recognized the power of Member States to restrict fr...
Abstract: In the early years consumer protection was an exception to the logic of the internal market. Since the case of Dassonville in 1974, the CJEU has recognized the power of Member States to restrict fr...
TL;DR: In this article, the authors propose that the legal research tradition within Europe that has engaged in the development of a European legal scholarship should strive to work on and work towards a "ius commune 3.0" as the upgraded, modernized version of the original ius commune tradition, which is the historical backbone of the currently
Abstract: Th ere are certain periods in a person’s life in which one feels the need to contemplate somewhat on life as it has unravelled so far. Caught in such a moment, wandering back to my early days in legal research, I started reminiscing about the old computer programs that were used back then, especially the text-writing programs. In those days, the midnineties of the previous century, all legal researchers seemed to use WordPerfect 5.0 and 5.1, following up on the older WordPerfect 4.2 which later became WordPerfect 6.0, and so on. Each new version of this program, with the accompanying higher number, promised and delivered a more modern and a better version. Nowadays we see the same, for example, in the market for mobile phones; the iPhone 3 soon became the iPhone 4, then became the iPhone 4G, and has now become the iPhone 5. Much along the same lines, I would like to propose here that the legal research tradition within Europe that has engaged in the development of a European legal scholarship, a modern ius commune – such as the legal researchers who have combined their eff orts in the Maastricht based Ius Commune Research School – should strive to work on and work towards a ‘ius commune 3.0’ as the upgraded, modernized version of the original ius commune tradition, which is the historical backbone of the currently
Journal Article•
TL;DR: A detailed analysis of four judicial responses to extreme pluri-contextual settings, the House of Lords' and the European Court of Human Rights' rulings in Al-Jedda, the UK Supreme Court's judgment in Ahmed, and the ECtHR's recent ruling in Nada, demonstrates that all three courts relied on elements of pluralist and constitutionalist logic as discussed by the authors.
Abstract: A detailed analysis of four judicial responses to extreme pluri-contextual settings, the House of Lords’ and the European Court of Human Rights (ECtHR)’s rulings in Al-Jedda, the UK Supreme Court’s judgment in Ahmed, and the ECtHR’s recent ruling in Nada, demonstrates that all three courts relied on elements of pluralist and constitutionalist logic. Elements of institutional hierarchy in international law are balanced against considerations that can be understood as substantive constitutional concerns. Sometimes their effects are counteracted by blunt pluralist claims. Radical pluralism and state-like constitutionalism are the two extreme poles on one scale. Both are ideal types and cannot exist in their pure form. The analysis further confirms the increased power of the judiciary, which, when determining the applicable normative framework, ultimately makes a choice between competing authorities representing competing values. ‘Communicative’ pluralism may contribute to the emergence of a shared frame of reference and ultimately to a shared understanding of the importance of certain substantive values.
TL;DR: In this article, the authors present an assessment on what is legal science, how it should be conducted, and also taught at universities, concluding that the ontology of law dictates how we should go about doing legal research, therefore legal science should not emulate other sciences in search of acceptance.
Abstract: Th e methodology of legal science and legal doctrine has received a lot of attention in recent years.1 Th is is of course useful for the legal academia since one should every now and then pause to think of what it is that we are actually doing. However, this plethora of publications on legal methodology poses a problem for one writing on the topic: how to say something genuine and interesting on the theme? Jan M. Smits, who is Professor of European Private Law at Maastricht University, has undertaken this intractable task in his book Th e Mind and Method of the Legal Academic. Th e book presents Smits’ assessment on what is legal science, how it should be conducted, and also taught at universities. His central argument is that legal scholarship should primarily be interested in what the law ought to be. Th e traditional approach of legal science, the doctrinal study of law from an internal perspective with an emphasis on systematization of legal rules, has been the subject of increasing criticism during the past decades. Is the internal perspective, which regards law as an autonomous system and takes positive law as given, adequate to grasp the problems that law is faced with in modern society? Smits states that his starting point is to contribute to this discussion. Whereas many critics have argued for the external view and the use of ‘law and ...’ approaches, Smits stresses the importance ‘to rediscover the legal approach to the law’.2 Th e theoretical, methodological and practical arguments he makes all stem from this viewpoint. Th e book also contributes to the discussion on trying to make legal science truly scientifi c, but this is done by turning the paradigm upside down: the ontology of law dictates how we should go about doing legal research, therefore legal science should not emulate other sciences in search of acceptance.
TL;DR: The changes observed are substantive, procedural and institutional in nature as discussed by the authors, and they are also observed in other fields of EU economic regulation, including energy and electronic communications, as well as in other countries of the EU.
Abstract: EU competition policy has undergone fundamental transformations over the past 20 years. The changes observed are substantive, procedural and institutional in nature. Two decades ago, EU competition policy was enforced centrally by the Commission in a way that is probably best described as traditional administrative law-making. Policy was formulated by means of formal decisions adopted in individual cases and by legislative instruments regulating firm behaviour in detail. Following the adoption of Regulation 1/2003, and as a result of the use of economic analysis, the enforcement landscape is more diverse and decentralized. National competition authorities have emerged as key players in the field (a trend that is also observed in other fields of EU economic regulation, including energy and electronic communications). Individual decisions are now crucially complemented by soft law instruments, the use of which started in the 1990s and which now permeate the whole discipline, and by negotiated procedures
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TL;DR: In this paper, the authors examine some cross-cutting questions of a constitutional nature in EU environmental law (innovative use of sou..., in line with the concept of the whole issue).
Abstract: The purpose of the present paper – in line with the concept of the whole issue – is to examine some cross-cutting questions of a constitutional nature in EU environmental law (innovative use of sou...
TL;DR: In this paper, the authors defend the social models unique to the continent of Europe and argue that the EU should rescind some of its established legal principles in order to make breathing space for Member States to maintain market correcting social policies.
Abstract: Conventional wisdom has it that the EU is unable to promote viable social integration, which contrasts with its commitments to improving working and living conditions and to social values and goals such as solidarity, social protection and social inclusion. This article challenges two different standpoints: on the one hand, competitive neoliberalism demands that the EU focuses on economic integration through legally binding internal market and competition rules even if Member States can only maintain a limited commitment to social inclusion, while authors defending the social models unique to the continent of Europe demand that the EU rescinds some of its established legal principles in order to make breathing space for Member States to maintain market correcting social policies. Both positions convene that there should be no genuine social policy at EU level. This article uses scenarios of widely discussed rulings by the Court of Justice to illustrate that legally enforceable economic integration would p...
TL;DR: The Treaty on the Functioning of the European Union introduces two new typologies of non-legislative acts having an influence on the institutional balance of powers as mentioned in this paper, and this article reflects on the i
Abstract: The Treaty on the Functioning of the European Union introduces two new typologies of non-legislative acts Having an influence on the institutional balance of powers, this article reflects on the i
TL;DR: In this paper, the authors present an overview of the content of the proposed directive, assess its scope and legal basis and investigate whether it contains the most suitable rules to achieve the aim of optimising the interaction between the public and private enforcement of competition law.
Abstract: On 11 June 2013 the European Commission adopted a package of instruments to facilitate damages claims by victims of antitrust damages. The main element of the package is a proposal for a directive on antitrust damages. The aim of this article is to give an overview of the content of the proposed directive, to assess its scope and legal basis and to investigate whether it contains the most suitable rules to achieve the aim of optimising the interaction between the public and private enforcement of competition law.
TL;DR: The European Commission has set out a modernization program for state aid as mentioned in this paper, which affects both substantive state aid law and administrative procedures, while the Commission has no power to change state aid rules.
Abstract: The European Commission has set out a modernization programme for state aid. This affects both substantive state aid law and administrative procedures. On substance, while the Commission has no pow...
TL;DR: The EU has in the past 15 years displayed particular interest in Alternative Dispute Resolution or ADR as discussed by the authors, and has issued a number of instruments that set out the procedural framework within which the ADR can be carried out.
Abstract: The EU has in the past 15 years displayed particular interest in Alternative Dispute Resolution or ADR. It has issued a number of instruments that set out the procedural framework within which the ...
Journal Article•