Anthony Arnull, Daniel Wincott, Accountability and Legitimacy in the European Union, OUP, 2003. Fragment din carte. GoogleBooks.
Contents
Foreword by the Rt Hon Christopher Patten, Member, European Commission
List of Contributors
List of Abbreviations
1. Introduction
Part I: Institutions and Decision-making
2. Issues of Decision-making in the European Union after Nice , Alan Dashwood
3. Decision-making under the Second Pillar , Adrian Hyde-Price
4. Decision-Making in the Area of Freedom, Security, and Justice , Jörg Monar
5. Accountability and Legitimacy: What is the Contribution of Transparency? , Peter Dyrberg
6. Enhanced Cooperation or Flexibility in the Post-Nice Era , John A Usher
7. Legitimacy, Accountability, and Delegation in the European Union , Anand Menon and Stephen Weatherill
8. The Judicial Architecture of the European Union after Nice , Laurence W Gormley
9. On the Legitimacy and Democratic Accountability of the European Central Bank: Legal Arrangements and Practical Experiences , Fabian Amtenbrink
Part II: Constitutionalism and the Future of Europe
10. The case for a Constitution for the Union , Frank Vibert
11. Drafting a Constitution for Europe: a Case of Too Many “Borders”? , Sophie Boyron
12. The Delimitation of Powers Between the EU and its Member States , Gráinne de Búrca and Bruno de Witte
13. The EU and Democracy – Lawful and Legitimate Intervention in the Domestic Affairs of States? , Nanette Neuwahl and Steven Wheatley
14. The Rule of Law in the European Union , Anthony Arnull
Part III: Fundamental Rights and Social Rights
15. Protecting Fundamental Rights in Europe: a Legal Analysis , Jeremy McBride
16. The EU Charter of Fundamental Rights , FG Jacobs
17. The Principle of Non-Discrimination in the Post-Nice Era , Evelyn Ellis
18. Protecting Fundamental Rights and Social Rights: An Economic Analysis , Lothar Funk
Part IV: New Governance and the European Union
19. Social Policy in the Post-Nice Era , Erika Szyszczak
20. EMU and Enlargement: Twin Threats to European Regional Cohesion? , Ronald L Martin
21. EMU and the Lisbon Goals in an Enlarged European Union , Andy W Mullineux and Cillian Ryan
22. The Governance White Paper, the Commission, and the Search for Legitimacy , Daniel Wincott
Part V: Enlargement and the Movement of People
23. The Enlargement of the European Union: A Legal Analysis , Christophe Hillion
24. Legitimacy and Accountability in the EU Enlargement: Political Perspectives from the Candidate States , Brigid Fowler
25. Free Movement of Persons in the European Union: The Legal Framework , Julian Lonbay
26. Managing the EU’s New External Border , Judy Batt
27. Immigration after Nice: From ‘Zero Immigration’ to Market Necessity , Fiorella Dell’Olio
Concluding Remarks
28. National States, European Union, and Changing Dynamics in the Quest for Legitimacy , Daniel Wincott
Select Bibliography
Index
Grainne De Burca, Reflections on the EU’s Path from the Constitutional Treaty to the Lisbon Treaty. Fordham Law Legal Studies Research Paper No. 1124586. Available at SSRN
This paper examines the path taken by the EU following the failure of the Treaty establishing a Constitution for Europe (TECE) in 2005, leading ultimately to the adoption of the Lisbon Treaty in 2007. It examines the reaction of Europe’s political leadership to the rejection of the TECE, and considers the implications of the choice to opt for a hasty and secretive drafting and adoption process for the Lisbon treaty. It seeks to account for the apparently paradoxical choice of EU leaders to respond to the popular discontent with the EU expressed by the negative referenda results in France and the Netherlands, and to the increasing demands for greater democracy, openness and transparency in EU affairs over the last two decades, by retreating to a secretive and executive-dominated process. The second part of the paper focuses more specifically on the reactions of various Member States to the TECE, and on specific concerns or opposition they expressed in relation to particular provisions thereof, as well as on the support they expressed for retaining or strengthening specific provisions. The paper identifies these different national concerns and interests and indicates the extent to which they were or were not addressed in the text of the Lisbon Treaty. Finally, the paper reflects on whether there are more general lessons to be drawn from the failure of the latest attempt to provide a formal constitutional foundation for the EU.
Da, desigur, scriam ca respectiva hotarare a CJCE va aduce consecinte importante. Pe de alta parte, noianul de articole/contributii etc. etc. (autohtone) dedicate problemei cetateniei UE, elogiind institutia juridica in cauza, nu trateaza implicatiunile (previzibile) ale unor astfel de solutii ale instantei comunitare. Credem ca in viitor ar trebui abordate aceste probleme, cum ar fi, de exemplu, ce se va intampla cu regimul azilului, al acordarii permisului de sedere pentru membrii familiei unui cetatean UE etc. etc. Si, mai general, care ar fi raportul intre cetatenia nationala si cea “unionala”…
Asadar…
…din EUObserver, cateva fragmente:
Inspired by the new EU ruling, a number of couples turned up on Monday (28 July) at the Danish Ministry for Integration in Copenhagen demanding a review of the ministry’s rejection of their applications to settle as couples in Denmark.
Danish newspapers are further reporting that a Danish common knowledge test for immigrants may also not be in line with EU rules.
In reaction, the Danish minister in charge of immigration, Birthe Ronn Hornbech, has now announced a review of the entire system of immigration in the country.
“The government must tell the EU system that it was a prerequisite for Danish EU membership to be able to run our immigration policies independently,” said the spokesperson on EU affairs of the right-wing Danish Peoples Party, Morten Messerchmidt, on Danish Radio.
Mr Messerchmidt suggested immigration should be covered by a Danish general exemption from EU justice policies, while legal experts have stated that the fundamental principle of free movement of citizens in the EU would supercede this.
Danish daily Jyllands-Posten published a comment on Tuesday (29 July) arguing that the EU court is doing the job of elected politicians.
“This practice is a democratic problem”, wrote Ralf Pittelkow, adviser to former Social Democratic Prime Minister Poul Nyrup Rasmussen.
“The judges are crafting a lot of policies because the politicians allow them the margin to do so. Political decisions that ought to be the responsibility of elected representatives are left with the court”.
Decizia nr. 604 din 2008: Curtea Constitutionala analizeaza si constitutionalitatea Regulamentelor?
“Este adevărat că Regulamentul Consiliului Uniunii Europene nr.343/2003, publicat în Jurnalul Oficial al Comunităţilor Europene L 199, 31/07/2007, p.0023-0029, stabilind criteriile şi mecanismele pentru determinarea statelor membre responsabile pentru examinarea cererilor depuse într-unul din statele membre de un cetăţean al unei ţări terţe, prevede, la art.19 paragraful 2, că implementarea transferului nu se suspendă în cazul introducerii unei căi de atac, în speţă, plângerea. Dar aceasta nu e o regulă imperativă, ci permite fie legislaţiei interne, fie instanţelor naţionale să aprecieze, de la caz la caz, asupra necesităţii suspendării executării dispoziţiei de transfer în alt stat.
Aşadar, dispoziţia cuprinsă în art.121 alin.(1) fraza a doua nu asigură un drept de acces efectiv la o instanţă de judecată.”
Unele discutii interesante au fost pe Lird.
Sungjoon Cho, Constitutional Adjudication in the World Trade Organization, (July 9, 2008). Society of International Economic Law (SIEL) Inaugural Conference 2008 Paper. Available at SSRN.
Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the WTO tribunal has in fact assumed such role by having recently struck down a hoary antidumping practice called “zeroing” which tends to inflate dumping margins and thus is a central vehicle for contingent protection embedded in the antidumping mechanism. The paper observes that the recent proliferation of antidumping measures as a new protectionist instrument has motivated the AB’s hermeneutical departure from the past interpretation which had endorsed the practice. This, it argues, is a “constitutional” turn of the WTO which a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound. Critically, this turn originates from bold ideas which envision, and thus “constitute,” new institutional meaning and possibilities within the WTO. In other words, the AB’s exegesis is anchored firmly by a discernible purpose of cabining trade distortive/restrictive consequences from the use of zeroing which have long been left unchecked. Finally, WTO members, the paper maintains, must preserve the anti-zeroing jurisprudence as constitutional norms in the absence of extraordinary circumstances tantamount to a constitutional amendment. In particular, it must not be a subject of political bargaining in the trade negotiation.
Rezumatul suna astfel:
1 . ARTICLE 43 OF THE TREATY IS THE APPROPRIATE LEGAL BASIS FOR ANY LEGISLATION CONCERNING THE PRODUCTION AND MARKETING OF AGRICULTURAL PRODUCTS LISTED IN ANNEX II TO THE TREATY WHICH CONTRIBUTES TO THE ACHIEVEMENT OF ONE OR MORE OF THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY SET OUT IN ARTICLE 39 OF THE TREATY . THERE IS NO NEED TO HAVE RECOURSE TO ARTICLE 100 OF THE TREATY WHERE SUCH LEGISLATION INVOLVES THE HARMONIZATION OF PROVISIONS OF NATIONAL LAW IN THAT FIELD, EVEN WHERE IT IS DIRECTED NOT ONLY TO OBJECTIVES OF THE COMMON AGRICULTURAL POLICY BUT ALSO TO OTHER OBJECTIVES WHICH, IN THE ABSENCE OF SPECIFIC PROVISIONS, ARE PURSUED ON THE BASIS OF ARTICLE 100 . INASMUCH AS ARTICLE 38 ( 2 ) OF THE TREATY GIVES PRECEDENCE TO SPECIFIC PROVISIONS IN THE AGRICULTURAL FIELD OVER GENERAL PROVISIONS RELATING TO THE ESTABLISHMENT OF THE COMMON MARKET, ARTICLE 100 CANNOT BE RELIED ON AS A GROUND FOR RESTRICTING THE FIELD OF APPLICATION OF ARTICLE 43 .
DIRECTIVE 86/113 LAYING DOWN MINIMUM STANDARDS FOR THE PROTECTION OF LAYING HENS KEPT IN BATTERY CAGES, WHICH WAS INTENDED MAINLY TO ELIMINATE DISTORTIONS OF COMPETITION WHICH MIGHT INTERFERE WITH THE PROPER FUNCTIONING OF THE COMMON ORGANIZATION OF THE MARKET FOR EGGS, WHILE AT THE SAME TIME PROMOTING ANIMAL WELFARE, COULD BE ADOPTED ON THE BASIS OF ARTICLE 43 ALONE .
2 . THE DETERMINATION OF THE APPROPRIATE LEGAL BASIS FOR A MEASURE DOES NOT DEPEND ON THE DISCRETION OF THE COMMUNITY LEGISLATURE BUT MUST BE BASED ON OBJECTIVE FACTORS WHICH ARE AMENABLE TO JUDICIAL REVIEW . A COUNCIL PRACTICE OF ADOPTING LEGISLATIVE MEASURES IN A PARTICULAR FIELD ON A DUAL LEGAL BASIS CANNOT DEROGATE FROM THE RULES LAID DOWN IN THE TREATY . SUCH A PRACTICE CANNOT THEREFORE CREATE A PRECEDENT BINDING ON THE COMMUNITY INSTITUTIONS WITH REGARD TO THE DETERMINATION OF THE CORRECT LEGAL BASIS .
3 . THE STATEMENT OF THE REASONS FOR A MEASURE, WHICH IS REQUIRED BY ARTICLE 190 OF THE TREATY AND IS INTENDED TO ENABLE THE COURT TO REVIEW ITS LEGALITY AND MAKE THE MEMBER STATES AND THE NATIONALS CONCERNED AWARE OF THE CONDITIONS UNDER WHICH THE COMMUNITY INSTITUTIONS HAVE APPLIED THE TREATY, IS AN ESSENTIAL PART OF THE MEASURE . CONSEQUENTLY, NEITHER THE SECRETARY-GENERAL OF THE COUNCIL NOR THE STAFF OF ITS GENERAL SECRETARIAT HAVE THE POWER TO ALTER THE STATEMENT OF THE REASONS FOR A MEASURE ADOPTED BY THE COUNCIL .
Cititi hotararea aici.
Printre care si Romania. Din EUObserver.
Scriam anterior despre actiunea preliminara si despre ce se va putea intampla. Solutia pare simpla insa ar putea ridica probleme in viitor.
Asadar, hotararea aici EN, FR, RO.
Cititi in EuObserver.
Dispozitivul suna astfel:
1. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [...] precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive.
2. Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.
instituţiile trebuie să menţioneze motivele care le-au determinat să acţioneze, pentru a face posibil pentru părţi şi pentru CJCE să reconsitituie elementele esenţiale ale motivaţiilor instituţiei
Cauza 14/61, Hoohgovens/Înalta Autoritate, hotărârea din 12.07.1962, Rec. 1962, p. 485;
Cauza 331/88, Fedesa, hotărârea din 13.11.1990, Rec. 1990, p. I-4023.
Cauza C-300/89, Comisia/Consiliu, hotărârea din 11.06.1991, Rec. 1991, p. I-2867.
1. In the context of the organization of the powers of the Community the choice of the legal basis for a measure may not depend simply on an institution’ s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review. Those factors include in particular the aim and content of the measure.
2. Where an institution’ s power is based on two provisions of the Treaty, it is bound to adopt the relevant measures on the basis of the two relevant provisions. However, where, as in the case of Article 100a of the Treaty, one of the enabling provisions requires recourse to the cooperation procedure provided for in Article 149(2) of the Treaty, on conclusion of which the Council may act by a qualified majority provided that it intends accepting the amendments proposed by the Parliament and put forward by the Commission, and the other provision, as in the case of Article 130s, requires the Council to act unanimously after merely consulting the European Parliament, use of both of them as a joint legal basis would divest the cooperation procedure of its very substance, the purpose of that procedure being to increase the involvement of the European Parliament in the legislative process of the Community. That participation reflects a fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly. It follows that in such a case recourse to a dual legal basis is excluded and that it is necessary to determine which of those two provisions is the appropriate legal basis.
3 In view of the fact that, in the first place, it is apparent from the very terms of Article 130r(2) of the Treaty that a Community measure cannot be covered by Article 130s merely because it pursues, among others, objectives of environmental protection, secondly, that action intended to approximate, in a given industrial sector, national rules concerning production conditions which were adopted for reasons relating to environmental protection but are liable to lead to distortions of competition, falls within the scope of Article 100a, since it is conducive to the attainment of the internal market, and, finally, that the objectives of environmental protection referred to in Article 130r may be effectively pursued by means of harmonizing measures adopted on the basis of Article 100a, the Council should have used Article 100a as the legal basis for Directive 89/428/EEC on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry. Since the Council wrongly based the directive on Article 130s, the directive must be annulled.
FR
1 . Dans le cadre du système des compétences de la Communauté, le choix de la base juridique d’ un acte ne peut pas dépendre uniquement de la conviction d’ une institution quant au but poursuivi, mais doit se fonder sur des éléments objectifs susceptibles de contrôle juridictionnel . Parmi de tels éléments figurent, notamment, le but et le contenu de l’ acte en cause .
2 . Dans la mesure où la compétence d’ une institution repose sur deux dispositions du traité, celle-ci est tenue d’ adopter les actes correspondants sur le fondement des deux dispositions en cause . Toutefois, lorsque l’ une des dispositions d’ habilitation prescrit, tel l’ article 100 A du traité, l’ application de la procédure de coopération avec le Parlement, prévue à l’ article 149, paragraphe 2, du traité, à l’ issue de laquelle le Conseil peut statuer à la majorité qualifiée, dès lors qu’ il entend accueillir les amendements formulés par le Parlement et repris par la Commission, et que l’ autre disposition prescrit, tel l’ article 130 S, le vote à l’ unanimité au sein du Conseil après simple consultation du Parlement, le cumul de base juridique serait de nature à vider de sa substance même la procédure de coopération dont l’ objet est de renforcer la participation du Parlement au processus législatif de la Communauté . Or, cette participation est le reflet, au niveau communautaire, d’ un principe démocratique fondamental, selon lequel les peuples participent à l’ exercice du pouvoir par l’ intermédiaire d’ une assemblée représentative . Il s’ ensuit que, dans pareil cas, le cumul de base juridique est exclu et qu’ il convient de déterminer laquelle des deux dispositions d’ habilitation constitue la base juridique appropriée .
3 . Étant donné, en premier lieu, qu’ il se déduit des termes mêmes de l’ article 130 R, paragraphe 2, du traité qu’ une mesure communautaire ne saurait relever des dispositions de l’ article 130 S en raison du seul fait qu’ elle poursuit, entre autres objectifs, la protection de l’ environnement, en second lieu, qu’ une action visant à rapprocher, dans un secteur déterminé de l’ industrie, les règles nationales relatives aux conditions de production, adoptées au vu de considérations tenant à la protection de l’ environnement, mais susceptibles de provoquer des distorsions de concurrence, relève, en tant qu’ elle est de nature à contribuer à la réalisation du marché intérieur, du champ d’ application de l’ article 100 A du traité et, enfin, que les objectifs de protection de l’ environnement visés à l’ article 130 R peuvent être poursuivis efficacement au moyen de mesures d’ harmonisation arrêtées sur le fondement de l’ article 100 A, il y a lieu de considérer que le Conseil aurait dû retenir comme base juridique de la directive 89/428, fixant les modalités d’ harmonisation des programmes de réduction, en vue de sa suppression, de la pollution provoquée par les déchets de l’ industrie du dioxyde de titane, l’ article 100 A . Le Conseil ayant à tort retenu l’ article 130 S, la directive doit être annulée .
Concluziile avocatului general Tesauro prezentate la data de 13 martie 1991. [EN, FR]
Antonis Antoniadis, The European Union and WTO law: a nexus of reactive, coactive, and proactive approaches, World Trade Review. Cambridge, Mar 2007. Vol. 6, Iss. 1. [In intregime aici]
Abstract (Summary)
Ranging from the denial of direct effect to WTO law by the Court of Justice to a WTO-friendly legislative culture currently booming in the EU’s political institutions, different approaches towards WTO law have been adopted within the EU. This article classifies the different approaches into reactive, coactive, and proactive by drawing on their common characteristics. The principal aim is to explore the considerations shaping the development of the different approaches and to argue that these stem from the interaction between the judiciary and the legislature. In doing so, this article purports to provide a comprehensive view of the application of WTO law within the Community legal order. [PUBLICATION ABSTRACT]
Concentrations: la Commission autorise le projet de rachat de Volkswagen par Porsche, Bruxelles, le 23 juillet 2008, IP/08/1201 [EN, FR]
La Commission européenne a autorisé, en vertu du règlement CE sur les concentrations, le projet de rachat de Volkswagen Allemagne par la société allemande Porsche. Après avoir examiné l’opération, elle a conclu que l’opération n’entraverait pas de manière significative l’exercice d’une concurrence effective dans l’Espace économique européen (EEE) ou une partie substantielle de celui-ci.
Asta e o discutie ce ar merita urmarita; banuim intentia (unora) de legiferare, in temeiul primului pilon – CE, a unor sanctiuni penale pentru respectivii angajatori, dar si opozitia (altora) la aceeasi tentativa.
Asadar, din International Herald Tribune:
BRUSSELS, Belgium: European Union nations made little progress Thursday on a plan to introduce a Europe-wide crackdown on illegal workers and on employers that hire them or abuse their rights.
Germany, Sweden and Poland led a group of seven EU nations critical of the proposal at talks by justice and interior ministers here that debated the issue.
They all argued the plan would do little to bolster national efforts to hunt down human trafficking and mobs that bring in highly prized cheap labor into the 27-nation bloc.
The rules, if approved in the coming months, also could spell the end of cheap labor for farmers, or individuals who illegally employ seasonal workers, nannies or cleaners, without paying taxes or social security charges on their wages.
Justice Minister Tobias Billstroem of Sweden said the EU as an organization did not have the power to recommend criminal penalties and should leave it up to member states to decide how best to deter the exploitation of illegal workers and Europe’s vast shadow economy.
Plans are under way to introduce an EU law that would set standard minimum criminal penalties such as jail time or fines against employers that hire illegals. The plan also calls for countries to carry out a minimum number of inspections and checks at job sites, a quota France, as EU president, is pushing hard for.
“If we are to combat this phenomenon effectively, it will not just depend on sanctions, it will depend on people’s political will to implement those sanctions in practice,” said Brice Hortefeux, France’s immigration minister who chaired the talks.
(…)
German Interior Minister Wolfgang Schaeuble said it was better to carry out random spot checks and raids rather than pricier across-the-board inspections.
“We are convinced that introducing a quota may include the possibility of carrying out controls just for the sake of meeting the quota,” Schaeuble said.
(…)
Currently, lax rules in many EU nations have drawn in cheap illegal labor for manual jobs in the construction, farm and service economy that many Europeans do not want. They often result in slave-like conditions for the workers EU officials have said.
EU officials have suggested fines levied on employers that hire illegals could include the costs of returning the immigrants to their home country and repaying outstanding wages, taxes and social security contributions. They also suggested companies that employ illegals should be cut from EU funding for businesses that work on public contracts.
Eugen Chelaru, Dreptul real de concesiune, Revista Romana de Drept Privat, nr. 2/2008, p.34.
“In principiu, acest domeniu, indiferent daca este vorba de concesionarea bunurilor, a lucrarilor sau a serviciilor publice, excedă domeniului de reglementare a dreptului comunitar consacrat achizitiilor publice, domeniu caracterizat prin accentuate diferentieri intre legislatiile nationale. Desi tratatele care stau la baza Uniunii europene nu contin prevederi referitoare la concesiuni, Curtea de Justitie a Comunitatilor a decis insa, in repetate randuri, ca si in aceste domenii trebuie respectate principiile fundamentale ale pietei interne a Uniunii, cum sunt nediscriminarea fondata pe nationalitate, libera circulatie a marfurilor, libertatea de stabilire si libertatea prestarii serviciilor.” *
* A se vedea L. Dubouis, C. Blumann, Droit materiel de l’Union Europeenne, 4e ed., Ed. Montcrestien, Paris 2006, p. 577. Pentru concesiuniile care cad totuşi sub incidenta directivelor Uniunii Europene, v. aceeaşi lucrare, p. 580. [Amazon]
L. Dubouis, C. Blumann, sunt citati ca nota de susbsol la paragraful reprodus.
Russell J Weintraub, The Choice-of-Law Rules of the European Community Regulation on the Law Applicable to Non-Contractual Obligations: Simple and Predictable, Consequences-Based, or Neither?, Texas International Law Journal. Austin: Summer 2008. Vol. 43, Iss. 3. [ProQuest]
“The European Community Regulation on the Law Applicable to Non-Contractual Obligations (“Rome II”) will take effect on January 11, 2009. This regulation is part of a widespread effort to draft new choice-of-law rules. For example, in 2007 a new conflict-of-laws code took effect in Japan. China is drafting a comprehensive civil code, which includes choice-of-law rules. What should be the objectives of these drafting projects? Should the new rules, as law-and-economics scholars urge, be simple and afford clearly predictable results? Or should choice-of-law rules endeavor to select the jurisdiction that experiences the consequences when the chosen law is applied? A third possibility is to draft rules that provide substantial predictability and are likely to be consistent with a consequences-based approach. Rome II falls into this third category: reasonably predictable results that are likely to give effect to the policies of the jurisdiction that will experience the consequences when the chosen law is applied.“
… sau cum s-ar exprima autorii romani: cu un recurs prejudicial/prejudiciabil/prealabil (sic!).
Asadar, va veti intreba: cum… pana acum… de atunci… “italienii” nu au utilizat procedura din art. 234 CE (sau, ma rog, art. 177 CEE)? Ei bine, nu prea, pentru ca s-au descurcat altfel, apreciind, de ex, constitutionalitatea unor prevederi legale cu propria Constitutiune.
Ordonanta 103/2008 (cea prin care a fost sesizata CJCE) si EN
un articol despre sistemul italian.
Un citat:
The world has spent $50 billion on global warming since 1990, and we have not found any actual evidence that carbon emissions cause global warming. Evidence consists of observations made by someone at some time that supports the idea that carbon emissions cause global warming. Computer models and theoretical calculations are not evidence, they are just theory.
Restul cititi in The Australian. Si, totusi, persista intrebarea: what if…?
Paolisa Nebbia, Unfair Contract Terms in European Law: A Study in Comparative and EC Law, Hart Publishing, 2007. [Hart, Amazon Search Inside,]
The book examines Directive 93/13 on Unfair Terms in Consumer Contracts and its implementation with a twofold aim: first, to understand the extent to which the Directive has influenced and will influence fundamental notions and principles of contract law in the domestic legal systems of the Member States; second, it examines the extent to which the domestic legal traditions of the Member States have influenced the process of drafting of the Directive and, more importantly, will affect the way that the Directive is interpreted and applied in national courts. The focus is mainly on English law (including the 2005 Unfair Terms in Contracts Bill) and on Italian law, but frequent references are made to the French and the German systems. At the same time, the book has a broader, more ‘European’ concern, in that it aims to distill from the existing Community acquis and from the history and rationale of Directive 93/13 notions and concepts that could guide its interpretation. It is well known that Community law uses terminology which is peculiar to it, and that legal concepts do not necessarily have the same meaning in EC law and in the law of the various Member States: every provision of Community law must be placed in its context and interpreted in the light of its own objectives and rationale, and of the objectives and rationale of Community law as a whole. In this respect, this book aims to identify the contours and features of the emerging European legal tradition, and to assess the impact that this may have on the domestic traditions.
Arnold N. Pronto, Some Thoughts on the Making of International Law, The European Journal of International Law Vol. 19 no. 3.
In their timely and thought-provoking book, Alan Boyle and Christine Chinkin explore contemporary methods of making international law. With the expansion of international law, and its increased specialization, it is no longer the case that it is ‘made’ by a finite number of entities (states) through a handful of intergovernmental processes. Instead, international law is made in a large number of fora, including a variety of multilateral processes, tribunals and the organs of international organizations. In addition, although states remain the primary makers of international law, they are joined by other participants such as international organizations and judges, as well as entities which are influential in the making of international law, including non-governmental organizations and even individuals. The authors’ approach is to seek to draw generalized inferences from an analysis of the processes, both within and beyond the United Nations, which led to the adoption (or not) of several significant international instruments and other documents. Although their treatment of the subject-matter is not without its difficulties, it nonetheless provides a useful overview, which should be of interest to the academic and practitioner alike. The book is also significant for the fact that, in reviewing the range of modern international law instruments, the authors inadvertently provide an insight into the modern sources of international law, particularly as regards the significance of the interplay between different types of law-making instruments. The present writer offers his perspective on the treatment of the question of participation in international law-making, the impact of NGOs in the making of international law, consensus-based decision-making, the role of innovation in securing consensus, and the concept of ‘soft law’.
Alan Boyle and Christine Chinkin, The Making of International Law, OUP, 2007 [OUP-USA, OUP-UK, primele 30 pagini]
Magdalena Licková, European Exceptionalism in International Law, European Journal of International Law, Oxford: Jun 2008. Vol. 19, Iss. 3; pg. 463. [*]
Abstract (Summary)
For Member States of the European Union, participation in this supranational organization has increased the number of difficulties in the international arena. Occasionally, the expanding legislative activity of the European institutions reaches out beyond the borders of the European legal system and incidentally affects the EU Member States’ autonomous relations with third parties. Consequently the EU and its members, often with success, seek third parties’ consent to exceptional treatment. Because of their number and significance, such derogations have inspired this article to inquire into their expansion and legal status under international law. Even though the EU-related exceptions have not created an international customary rule, the article observes that European integration shapes international rules in diverse fields and adjusts them to its needs. Since European integration is designed to administer and regulate an increasing number of issues, the autonomous international obligations of the EU Member States may become an obstacle. Because the European Union is likely to continue using special treatment in the future, it is important to assess how far the supranational exception can go in order to accommodate all interests at stake
Horst Eidenmüller, Free Choice in International Company Insolvency Law in Europe, European Business Organization Law Review. Cambridge: Sep 2005. Vol. 6, Iss. 3; p. 423 [EBOR, SSRN, ProQuest]
Within the European Union, firms are now free under Articles 43 and 48 EC to choose a corporate form of their liking, regardless of the actual head office (real seat) of the company. However, they are not free to choose the applicable bankruptcy regime. Under Article 3(1), first sentence, of the European Insolvency Regulation (EIR), jurisdiction for main insolvency proceedings lies with the courts of the Member State in which the debtor has the centre of its main interests (COMI). The COMI standard is fuzzy and allows last-minute forum shopping by the management/shareholders of a distressed debtor, to the detriment, especially, of creditors who cannot (easily) adapt. Given the poor performance of the COMI standard, it seems worthwhile to explore the merits of an alternative approach that gives more room to freedom of choice in international company insolvency law in Europe. Various models of free choice are discussed: free choice of the applicable insolvency law, free choice of the applicable insolvency law insofar as it contains substantive – as opposed to procedural – provisions, free choice of the bankruptcy forum (‘unconstrained forum choice’) and free choice of the bankruptcy forum in combination with the company law applicable to a company (‘constrained forum choice’). This article shows that, on efficiency grounds, the last model is to be preferred. It would improve matters compared to the status quo, and it would also be easy to implement in practice by changing the wording of Article 3 EIR. Even though this solution is preferable as a policy option, it is not mandated by Articles 43 and 48 EC. However, these treaty provisions do not mandate the COMI standard either. European legislation is thus free to effect the desirable changes to the EIR.
Temeiurile celor doua concepte sunt diferite: in primul caz, al societatii europene (SE) natura sa hibrida, pe cand, libertatea de stabilire, un principiu (in sensul prim al cuvantului) in actiune. Asteptam, o continuare a studiului dupa Cartesio.
WOLF-GEORG RINGE, The European Company Statute in the Context of Freedom of Establishment, Journal of Corporate Law Studies, Vol. 7, No. 2, October 2007. SSRN
One of the key features of the new Europe-wide legal form “European Company” (“Societas Europaea” or “SE”) is the possibility of transferring the company’s seat from one Member State to another without having to be wound up or to re-register. As this possibility does not exist for companies formed under national law, the formation of an SE will often present the only possibility for companies to transfer their incorporation and corporate headquarters between Member States. This is a big advantage and a milestone towards the European Internal Market. However, some doubts remain as to the practicability of the system. The mandatory linkage of the head office to the registered office within the same Member State according to Article 7 of the SE Regulation is very problematic and, in light of recent ECJ decisions such as Centros, Überseering and Inspire Art, may violate EC primary legislation. Why should companies that are formed under national law be allowed to have the head office in a Member State different from their registration state, while an SE – as an instrument of Community law and a symbol of the Internal Market – is not? Furthermore, the detailed procedural rules laid down in the Regulation are sometimes overprotective and may significantly reduce the attractiveness of the SE’s mobility. It is argued that Article 7 of the SE Regulation is secondary law that itself is inconsistent with the (primary) EC Treaty. Furthermore, the Member States also tend to be overprotective when enacting safeguard measures for the benefit of creditors, minority shareholders and employees. Here again, freedom of establishment does not allow protectionist measures that contravene the gist of the SE’s mobility.