Showing papers on "Directive published in 2010"

Directives: Entitlement and contingency in action

Abstract: This article is focused on the nature of directives. It draws on Curl and Drew’s (2008) analysis of entitlement and contingency in request types and applies this to a corpus of directives that occur in UK family mealtimes involving parents and young children (three–eight-year-olds). While requests are built as contingent to varying degrees on the recipient’s willingness or ability to comply, directives embody no orientation to the recipient’s ability or desire to perform the relevant activity. This lack of orientation to ability or desire may be what makes them recognizable as directives. When examining directives in sequence the contingencies were successively reduced or managed during the delivery of the directive, thereby treating contingencies as a resource of the speaker rather than of the recipient. In a sense the entitlement claimed is ‘to tell’ rather than ‘to ask’. In sequences involving multiple/repeated directives, non-compliance led to upgraded (more entitled and less contingent) directives. The difference in the entitlement claimed, the response options available and the trajectory of multiple requests/directives suggests that participants orient to requests and directives as different actions, rather than more or less forceful formulations of the same.

A new law on advance directives in Germany

Abstract: This article presents the new German law on advance directives from 1 September 2009. The history of the parliamentary process of this law is described, the present regulations are explained, their relevance for medical practice discussed and shortcomings are identified. Finally, the new law is compared with other regulations in the international context. Previously established legal practice in Germany has now become largely confirmed by the new law: An advanced directive must be respected in any decision concerning medical treatment, regardless of the stage of the illness. It can be informally revoked at any time, even with limited decision-making capacity. Nobody may be obliged to issue a directive in any way. Advance directives do not need notarisation or routine updating after certain time intervals. Provided that the patient, who is no longer mentally competent, has issued a lasting power of attorney (Bevollmachtiger), or provided that the patient has been appointed a healthcare proxy by the courts (Betreuer), this authorised surrogate must assert the patient's will. The role of the guardianship court is clarified: it only needs to be involved in cases of disagreement as to the patient's will. The new German law thus combines more legal certainty with a liberal emphasis on patient autonomy and flexible, adaptable regulations.

Comparative analysis of the revised Directive 2010/63/EU for the protection of laboratory animals with its predecessor 86/609/EEC - a t4 report.

Abstract: On 8th September 2010 the long process of revising the EU Directive for the protection of laboratory animals was concluded. Here a comparative evaluation of the new and old Directive is provided. While its ultimate goal is to replace the use of animals, the new Directive acknowledges that animals, including nonhuman primates, are still needed for scientific purposes today. Importantly, animals have an intrinsic value, which must be respected. There are some major advances for animal welfare, many of which had however already been common practice in the more progressive Member States. The new Directive prohibits new, more progressive legislation if not already in place and thus harmonises but also freezes the 27 Member States at a relatively high level. The revision was an important opportunity for the European Commission, on the one side to demonstrate its commitment to improve human health and safety by enabling animal testing and on the other side to improve animal health and welfare by setting minimum standards. By this Directive Europe is again taking a leading role in research and development for new non-animal tests and technologies by introducing a series of measures that strengthen the evaluation of the need of animal use in each case. It also represents a formal implementation of the 3Rs principle (Replacement, Reduction and Refinement of animal tests) put forward by Russel and Burch 1959.

Advance directives in dementia: issues of validity and effectiveness.

Abstract: Background: Although advance directives may seem useful instruments in decision-making regarding incompetent patients, their validity in cases of dementia has been a much debated subject and little is known about their effectiveness in practice. This paper assesses the contribution of advance directives to decision- making in the care of people with dementia, with a special focus on non-treatment directives and directives for euthanasia. Methods: The relevant problems from the ethical debate on advance directives in cases of dementia are summarized and we discuss how these relate to what is known from empirical research on the validity and effectiveness of advance directives in the clinical practice of dementia care. Results: The ethical debate focuses essentially on how to respond to the current wishes of a patient with dementia if these contradict the patient's wishes contained in an advance directive. The (very limited) empirical data show that the main factors in medical decision-making in such cases is not the patient's perspective but the medical judgment of the physician and the influence of relatives. Insight into the experiences and wishes of people with dementia regarding advance directives is totally lacking in empirical research. Conclusions: Ethics and actual practice are two "different worlds" when it comes to approaching advance directives in cases of dementia. It is clear, however, that the use of advance directives in practice remains problematic, above all in cases of advance euthanasia directives, but to a lesser extent also when non- treatment directives are involved. Although generally considered valid, their effectiveness seems marginal. Further empirical research into the (potential) value of advance directives in dementia care is recommended.

The willing, the unwilling and the unable – explaining implementation of the EU Biofuels Directive

Abstract: In this article we test current knowledge about policy implementation in multilevel governance systems and focus on the debated case of transport biofuels (EU Directive 2003/30/EC). We probe a set of hypotheses in a qualitative comparative analysis, offering a systematic comparison of 10 member states between 2003 and 2006. The findings show that implementation of the EU biofuels policy is a complex phenomenon where combinations of causal conditions, and not single conditions, produce the outcome. Implementation is more likely when three favourable conditions are present, when policy frames and content between EU and national levels match, when a consensual policy style is used and the most important actors are included. These findings are in agreement with previous studies. Non-implementation, on the other hand, is explained by a dichotomy between member states unable to implement because they lack capacity and those member states unwilling to implement even if they can.

Opposition through the back door in the transposition of EU directives

Abstract: Are member states less likely to transpose a European Union directive correctly if they disagreed with the directive at the decision-making stage? Existing research provides mixed answers to this question. Most of this research does not consider the role of the enforcement agent, the European Commission, and uses aggregate measures. By contrast, this study considers the impact of the Commission, and focuses on specific provisions in directives. It combines detailed information on states’ disagreement with each provision at the decision-making stage and the quality of national transposition of each provision. The descriptive analysis shows that protracted non-compliance in national transposition is a rare event. The explanatory analysis indicates that states’ policy preferences significantly affect the likelihood of transposition problems, and that this is conditioned by the behaviour of the Commission.

Re-engineering legal opportunity structures in the European Union? The Starting Line Group and the Politics of the Racial Equality Directive

Abstract: Using the Racial Equality Directive to test competing explanations concerning the types of actors who seek to liberalize legal opportunity structures, we find that it was pursued by a coalition of societal interests working through European Union institutions that sought reforms intended to facilitate strategic litigation.

The World of Life; A Manifestation of Creative Power, Directive Mind and Ultimate Purpose

Abstract: THE appearance of a new book written by the veteran naturalist in his eighty-eighth year cannot fail to arouse the interest of a wide circle of readers. The work may indeed be regarded as a recapitulation of the opinions on a great variety of topics which, during a long and active literary career, extending over more than fifty years, Dr. Alfred Russel Wallace has put forth in a number of memoirs, books, and magazine articles. But to regard the work as a mere summarv of the results of former labours would be to do a great injustice to its author; for there is scarcely a subject referred to in it, in which fresh facts, novel lines of reasoning, or suggestive conclusions are not presented for our consideration.The World of Life: a Manifestation of Creative Power, Directive Mind, and Ultimate Purpose.By Dr. A. R. Wallace Pp. xvi + 408. (London: Chapman and Hall, Ltd., 1910.) Price 12s. 6d. net.

Country Report South Africa

Abstract: This national report on South Africa deals with issues such as informed consent, the protection of persons who are incapable of giving legal consent to clinical trials and research, and the function and composition of research ethics committees. The report discusses relevant South African common-law and constitutional provisions, and critically analyses national legislation and draft regulations which, for the first time in South Africa’s legal history, attempt to provide comprehensively for research-related issues. The report concludes that although the EU Directive on the Implementation of Good Clinical Practice in the Conduct of Clinical Trials on Medicinal Products for Human Use of 4 April 2001 (Directive 2001/20 EC) has thus far had very little direct effect on South Africa, there are many points of similarity between the provisions of the directive and the ethical and legal provisions which obtain in South Africa (as at April 2009).

Readability of state-sponsored advance directive forms in the United States: a cross sectional study

Abstract: Background State governments provide preprinted advance directive forms to the general public. However, many adults in the United States (US) lack the skills necessary to read and comprehend health care-related materials. In this study, we sought to determine the readability of state government-sponsored advance directive forms.

Harmonization of takeovers in the internal market : an analysis in the light of EU law

Abstract: This DPhil thesis analyses the Takeover Bid Directive in the light of EU Law and examines the extent to which this Directive facilitates the exercise of the fundamental freedom of establishment and the free movement of capital in the internal market. Since the Directive is based on the EC Treaty chapter on freedom of establishment (Articles 43 and 44(2)(g) EC Treaty), it should in principle contribute to cross frontier corporate mobility in the internal market through takeover bids; this was the aim of the Commission in its various proposals. Takeover bids and the EC Treaty provisions on freedom of establishment are closely related. The Directive forms part of the EU company law harmonization programme whose weaknesses and limits are also explored. However, the Takeover Bid Directive is an EU company law instrument with strong links to EU capital market law. The initial aims of the EU legislature were to establish an internal market for companies and to achieve market integration in the field of EU company law. However, the Takeover Bid Directive is a compromise and watered down version of a proposal which the Commission envisaged would lead to a more effective pan-European takeover regime than that which actually proved possible. The need for compromise was the result of the very different legal and policy approaches of the Member States in the field of takeover regulation. Some provisions of the Directive are obligatory for all Member States. These provisions include the mandatory bid rule, the squeeze-out right, and the sell-out right. All these obligatory provisions of the Directive are in their present form open to criticism. The two key provisions of the Directive have been made optional for Member States. These are the non-frustration rule, requiring the board to obtain the prior authorization of the general meeting of shareholders before taking any action which could result in the frustration of the bid; and the breakthrough rule, requiring that any restrictions on the transfer of securities or voting rights provided for in the articles of association of the offeree company or in contractual agreements between the offeree company and the holders of its securities or in contractual agreements between holders of the offeree company’s securities shall not apply vis-a-vis the offeror during the time allowed for acceptance of the bid. Nevertheless, Member States, which opt out, are obliged to allow individual companies to opt in. Moreover, a reciprocity rule was also adopted, which allows Member States to permit those companies, which apply these provisions, to opt out again if they are the target of a bidder, which does not itself apply the same takeover provisions. Additionally, the non-frustration and the breakthrough rule are not fully comprehensive and even when a company applies them, it might still be able to evade their application since some corporate and financial structures remain outside the Directive’s scope. Finally, this thesis discusses the extent to which obstacles to cross border takeovers addressed by the Directive, or indeed left intact by the Directive, are to be regarded as restrictions on the right of establishment stricto sensu, or simply as obstacles in practice to making a successful takeover bid. More specifically, it scrutinizes the horizontal direct effect of the EC fundamental freedoms and seeks to analyze the extent to which conduct of the board and articles in the corporate constitution might be said to constitute restrictions on the freedom of establishment and on the free movement of capital.

Why cherry-picking never leads to harmonisation: the case of the limitations on copyright under Directive 2001/29/EC

Abstract: JIPITEC 1 (2010) 2 - The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look at three examples of limitations that have led to legislative changes at the Member State level as express measures towards the implementation of the Information Society Directive, that is, the limitations for the benefit of libraries, for teaching and research, and for persons with a disability. These exceptions and limitations were later on also identified by the European Commission as key elements in the deployment of a digital knowledge economy. The analysis will show that the implementation of the provisions on limitations in the Information Society Directive did not, and probably cannot, yield the expected level of harmonisation across the European Union and that, as a consequence, there still exists a significant degree of uncertainty for the stakeholders regarding the extent of permissible acts with respect to copyright protected works.

Harmonisation by Example: European Laws against Unfair Commercial Practices

Abstract: This examination of the implementation of the European Union's Directive on Unfair Commercial Practices in the United Kingdom by the Consumer Protection from Unfair Trading Regulations 2008 assesses the likely impact on the national law governing the marketing practices of rogue traders, including its ambition to simplify and extend legal protection, and the likely success of the Directive in achieving the harmonisation of the laws and practices regulating marketing in Europe. In particular, the discussion evaluates the regulatory strategy of the Directive in its attempt to secure uniform laws through the combination of principles, rules, and concrete examples of prohibited practices. The paper also investigates the likely impact of the Regulations on the private law of contract and tort and the possibilities for improvements in a consumer's personal right of redress.

About the E-Privacy Directive: Towards a Third Generation of Data Protection Legislation?

Abstract: The main purpose of this contribution is not to analyse provision by provision the E-Privacy Directive presently in course of revision, but to describe the emergence of new principles which, in our view, might be considered as going far beyond the traditional principles enshrined in the Council of Europe Convention 108 and already translated in the E.U. Directive 95/46/EC. These new principles fully take into account the new Privacy threats incurred by individuals, due to the characteristics of modern and future information systems on a more and more global interactive and convergent Internet.

Reversing the Code Status of Advance Directives

Abstract: Twenty years ago, Congress passed the Patient Self-Determination Act, hoping to improve end-of-life care through the use of advance directives. The statute stimulated the development of a cornucopia of planning documents. Patients can sign a living will that states that they do not want their lives prolonged if they are terminally ill. They can complete an instructional directive that specifies, for each of several clinical scenarios, which listed medical interventions they would want. They can fill out a values history, describing what they care most about, or they can designate a surrogate decision maker to speak on their behalf if . . .

End-of-life care in the 21st century: advance directives in universal rights discourse.

Abstract: This article explores universal normative bases that could help to shape a workable legal construct that would facilitate a global use of advance directives. Although I believe that advance directives are of universal character, my primary aim in approaching this issue is to remain realistic. I will make three claims. First, I will argue that the principles of autonomy, dignity and informed consent, embodied in the Oviedo Convention and the UNESCO Declaration on Bioethics and Human Rights, could arguably be regarded as universal bases for the global use of advance directives. Second, I will demonstrate that, despite the apparent consensus of ethical authorities in support of their global use, it is unlikely, for the time being, that such consensus could lead to unqualified legal recognition of advance directives, because of different understandings of the nature of the international rules, meanings of autonomy and dignity which are context-specific and culture-specific, and existing imperfections that make advance directives either unworkable or hardly applicable in practice. The third claim suggests that the fact that the concept of the advance directive is not universally shared does not mean that it should not become so, but never as the only option in managing incompetent patients. A way to proceed is to prioritize work on developing higher standards in managing incompetent patients and on progressing towards the realization of universal human rights in the sphere of bioethics, by advocating a universal, legally binding international convention that would outlaw human rights violations in end-of-life decision-making.

The European Union and the Marine Strategy Framework Directive: Continuing the Development of European Ocean Use Management

Abstract: The European Union has been engaged in an effort to develop a marine strategy to protect the marine environment and a more encompassing integrated maritime policy that would provide a comprehensive system for the management of the uses of the marine areas of Europe. An earlier article by the author described the beginnings of this policy development; this article examines the subsequent 2008 Directive of the European Parliament and the Council, which establishes a framework for community action in the field of marine environmental policy. The Marine Strategy Framework Directive provides a plan of action with designated responsibilities and obligations and a schedule that is to be adhered to by member states and the European Commission. It represents a significant step in the European endeavor to advance ocean use management and sets the stage for future development of European marine policy.

Employee participation in the EU: The long and winding road to legislation

Abstract: Over recent years, the EU has managed to adopt three important measures on employee participation: the European Works Councils Directive (1994, recast in 2009), the European Company Statute (2001) and the Directive on the Information and Consultation of Employees (2002). While the emergence of forms of ‘soft’ law and ‘multilevel governance’ were preconditions for the adoption of these directives, this article draws attention to the significance of the changing rationales mobilized by the Commission to justify them. Rationales have included company law harmonization; prevention of social dumping; protection of workers’ rights; and participation as a ‘productive factor’. As the EU has widened membership and deepened economic integration, the Commission has sought to demonstrate in particular that employee participation may act as a ‘productive factor’ for companies experiencing business turbulence. Such a rationale, though generally aimed at employers, challenges unions and employee representatives to ensure that the new measures genuinely promote workers’ interests.

Full Harmonisation as a Regulatory Concept and its Consequences for the National Legal Orders: The Example of the Consumer Rights Directive

Abstract: On 8 October 2008 the European Commission submitted the proposal for a new Consumer rights directive to the European Parliament and the Council of Ministers. This paper discusses the type of harmonisation that is foreseen in the proposed directive. It first addresses the choice between minimum and full harmonisation and the question whether there is actually support for the shift from minimum harmonisation to full harmonisation. Subsequently, an attempt is made to rebut the Commission’s argument in favour of full harmonisation. The remainder of the paper is dedicated to the consequences of full harmonisation for general contract law, the level of consumer protection offered under the proposed directive, and the possibility to shift to targeted full harmonisation of some areas, and minimum harmonisation for other.

Standards of Protection: In Search of the 'Average Consumer' of EU Law in the Proposal for a Consumer Rights Directive

Abstract: In EU free movements regulation, the average consumer is regarded as someone who is ‘reasonably circumspect’ and able to look after his own interests. National legislation aiming at offering a higher degree of protection is often struck down, in this light, as creating unjustified barriers to trade. In contrast, Directives aimed at harmonisation of consumer contract law generally take a very consumer-friendly stance, imposing a higher level of consumer protection than the free movements regulation would allow. The result is a discrepancy in the underlying framework for regulation in the Internal Market and, consequently, uncertainty for businesses and consumers operating in that market. This paper considers whether the review of the consumer acquis, in particular the proposal for a Consumer Rights Directive, should open the way for aligning the ‘average consumer’ notion from the Directives with the benchmark set in EU law in order to ensure greater legal certainty. To that end, it first seeks to identify the position of the standards set by the existing four Directives and the text of the proposal in relation to the ‘reasonably circumspect’ consumer of EU law. Secondly, in order to align the different notions of the ‘average consumer’ in EU law and in the Directives, the paper argues that lessons can be learnt from the example set by the Unfair Commercial Practices Directive. This approach may be characterised as ‘targeted differentiation’.

Kücükdeveci: Mangold Revisited – Horizontal Direct Effect of a General Principle of EU Law: Court of Justice of the European Union (Grand Chamber) Judgment of 19 January 2010, Case C-555/07, Seda Kücükdeveci v. Swedex GmbH & Co. KG

Abstract: On 22 November 2005 the European Court of Justice (hereafter, the Court) rendered its Mangold-ruling on Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (hereafter, Directive 2000/78). The most striking part of this judgment, rendered in a private dispute, was the following conclusion:Community law and, more particularly, Article 6(1) of (…) Directive 2000/78/EC (…) must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings (…) It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.The judgment evoked a great amount of criticism from the media, academia, several advocates general and the member states.