Principles for Conflict of Laws in Intellectual Property
Second Preliminary Draft June 6, 2009
Prepared by the European Max Planck Group on Conflict of Laws in Intellectual Property
Roland Vaubel, Constitutional courts as promoters of political centralization: lessons for the European Court of Justice, European Journal of Law and Economics, Dec 2009, Vol. 28, Iss. 3; pg. 203 [*]
Abstract (Summary)
A cross-section analysis covering up to 42 countries and including the usual control variables shows that central government outlays as a share of general government outlays are significantly larger if the judges of the constitutional or supreme court are independent of the federal government and parliament and if the barriers to constitutional amendment are high. This evidence is consistent with the view that constitutional judges have a vested interest in centralization or that there is self-selection or both. These insights are used to draw lessons for the reform of the European Court of Justice. Self-selection should be reduced by requiring judicial experience–ideally with the highest national courts. The vested interest in centralization could be overcome by adding a subsidiarity court.
si abandonarea jurisprudentei Cohn-Bendit.
Decizia aici. [N° 298348 Mme Perreux]
PS. Banuim ca va mai curge ceva apa [i.e. H2O] pe Sena, Marna, Tamisa, Amstel, Rin, Dunare si chiar Dambovita pana cand doctrinarul roman va lua la cunostinta si comenta recenta evolutie… pentru ca, nasha?, bietul de el a ramas cantonat, in genere, tot in negura inceputurilor constructiunii comunitare.
Chris Koedooder, Niki de Lang, Anti-terrorist Blacklisting in the European Union: The Influence of National Procedures on the Judgments of the Court of First Instance of the European Communities, Legal Issues of Economic Integration, vol. 36, 4/2009, pp. 313–337
Summary:
The most prominent example of anti-terrorism measures is undoubtedly the freezing of funds of individuals or entities suspected of committing or supporting terrorist acts. The European Union (EU) implements United Nations (UN) Security Council Resolutions and maintains its own anti-terrorist blacklist. This article looks at fund-freezing decisions taken on the basis of both the UN sanctions regime and the autonomous EU sanctions regime and the resulting jurisprudence of the Community courts. Discussion of recent judgments of the Court of First Instance (CFI) in the Sison and OMPI cases, both concerning EU level sanctions, will illustrate that the underlying national procedures can have considerable influence on the Court’s judgments in this field. Central to the discussion will be the relevance of national procedures and judgments on the validity of blacklisting decisions and their review.
Sau cum ar veni “the use of foreign law & doctrine in American courts”…Ori despre modele de “fédéralisme d’exécution“.
“The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central “federal” body.”
Supreme Court of United States, 521 U.S. 898, Printz v. United States, 95-1478 Argued: December 3, 1996 — Decided: June 27, 1997. Justice Breyer, with whom Justice Stevens joins, dissenting.
Steven Greer, Andrew Williams, Human Rights in the Council of Europe and the EU: Towards ‘Individual’, ‘Constitutional’ or ‘Institutional’ Justice?, European Law Journal, Oxford: Jul 2009. Vol. 15, Iss. 4;
The European Convention on Human Rights, promulgated by the Council of Europe in 1950, is widely regarded as the world’s most successful experiment in the trans-national judicial protection of human rights. The EU’s much more recent judicial and political interest in human rights has also been widely welcomed. Yet, while the crisis currently afflicting the Convention system has not gone unnoticed, the same cannot equally be said of the difficulties presented by the increasing interpenetration of the two systems. Amongst the few who have shown some interest in these problems, the dominant view is that good will and common sense will provide adequate solutions. We disagree. Instead, we detect a gathering crisis which, unless properly analysed and effectively tackled, will only deepen as the EU’s interest in human rights develops further. In our view, the problem is essentially conceptual and that, ultimately, it boils down to a much-neglected question, simple to state but not so easy to answer: is the trans-national protection of human rights in Europe a matter of ‘individual’, ‘constitutional’ or ‘institutional’ justice?
Chantal Mak, The Constitutional Momentum of European Contract Law (II): The DCFR and the European Constitutional Order (September, 22 2009). Opinio Juris in Comparatione, Vol. 2/2009, Paper No. 3. Available at SSRN.
Abstract:
This paper analyses the potential impact of the recently published Draft Common Frame of Reference for European contract law (DCFR) on the European constitutional process. Looking at the combination of characteristics of codification and aspects of constitutionalism reflected in the DCFR, it is submitted that the further harmonisation of European contract law may contribute to the definition of the European constitutional order both on the institutional level (regarding the forms in which Europe’s Constitution is expressed) and on a substantive level (concerning the values encompassed by a ‘lasting constitutional settlement’ for the EU).
Ewoud H. Hondius, Fifteen Years of European Private Law – at the Occasion of the 15th Birthday of the Trento/Torino Common Core of European Private Law Project (September, 22 2009). Opinio Juris in Comparatione Vol. 2/2009, Paper No. 5. Available at SSRN.
James E. Pfander, Member State Liability and Constitutional Change in the United States and Europe, American Journal of Comparative Law, Vol. 51, No. 2, 2003. Available at SSRN.
Abstract:
In a well-known series of recent cases, the Supreme Court of the United States has dramatically narrowed the obligation of states to comply with the rules of accountability that Congress has applied to other aspects of our national commercial life. Although the Court has frequently invoked the Eleventh Amendment to defend its narrowing of state accountability, its decision in Alden v. Maine makes clear that state sovereign immunity rests less on the text of the Constitution than on unwritten structural postulates that it has described as “implicit in the constitutional design.” Across the Atlantic, the European Court of Justice has drawn on similarly unwritten postulates in developing rules to govern member state accountability to central legislative norms. Yet in Europe, the ECJ has pushed in the opposite direction, expanding member state liability beyond the limits specified in the treaties that constitute the European Union.
This paper takes the differing approaches of the Supreme Court and the ECJ as the jumping off point for a rumination on the legitimacy of constitutional change in federal systems. In Europe, a doctrine known as the acquis communautaire has evolved in ways that require newly admitted member states to subscribe not only to the formal terms of the treaties themselves but also to the unwritten rules that the ECJ has announced in working out a jurisprudence of European integration. Avowedly forward looking, the acquis provides an underpinning of legitimacy for the ECJ’s jurisprudence. In effect, the acquis suggests that each member state, upon accession to the Union, must accept both the specific terms of prior judicial decisions and the notion of an evolving jurisprudence. In the United States, by contrast, the Supreme Court’s decisions have looked backwards through the lens of originalism to identify the nature of the accessionary bargain of the original thirteen states. Such a backward-looking originalism corresponds to the emphasis in the American equal-footing doctrine on the nature of the original deal among the states that formed the Union. It also corresponds to the Court’s rejection of the metaphor of living constitutionalism that one finds most famously expressed in Justice Holmes opinion in Missouri v. Holland.
The paper concludes with a suggestion that the acquis, coupled with the relatively dynamic quality of European federalism, may help to explain the ECJ’s evolving jurisprudence of constitutional integration. Europe continues to grow, with the planned accession of ten new member states in 2004 and more on the way. In the United States, by contrast, no new member states have joined the Union since the late 1950s, and the prospects for further growth as a nation seem remote indeed. The closing of the border in the United States may have contributed to the perception that the project of federal integration has been completed. Such developments may have also contributed to a closing of the judicial mind to the possibility of further change in the nature of federal relationships.
Luke Eric Peterson, European Commission moves to intervene in another ICSID arbitration, Micula v. Romania – a dispute hinging on withdrawal of investment incentives by Romania, May 11, 2009 (Vol. 2, No. 8 ).
L’Institut européen de Roumanie, l’Ambassade de France en Roumanie et la Faculté de droit de l’Université de Bucarest ont l’honneur de vous inviter à participer lundi 28 septembre 2009 à 11h00 à la Faculté de droit de l’Université de Bucarest (Bd. Kogalnicineanu nr. 36-46, 050107 Bucarest, salle de conférence Stoicescu) à la conférence :
« Droit national et droit européen »
donnée par
M. Bernard STIRN, Président de la section du contentieux du Conseil d’Etat
La conférence sera ouverte par M. Henri PAUL, Ambassadeur de France en Roumanie et modérée par M. Flavius BAIAS, Doyen de la Faculté de droit.
Cet évènement sera la dix-huitième conférence du cycle “Roumanie – France : ensemble en Europe” co-organisé par l’Institut européen de Roumanie (IER) et l’Ambassade de France en Roumanie depuis 2007 afin de donner une perspective franco-roumaine sur l’intégration européenne de la Roumanie.
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M. Bernard STIRN, 57 ans, juriste et ancien élève de l’Ecole nationale d’administration, a intégré le Conseil d’Etat en 1976. Il en a été Secrétaire général de 1991 à 1995 et en préside la section du contentieux, plus haute instance de la juridiction administrative française, depuis 2006. Son parcours professionnel l’a également amené à occuper différentes responsabilités administratives au sein du Ministère de l’industrie et de la recherche et du Ministère de l’éducation nationale. Il est également (depuis 2001) Président de l’Opéra national de Paris.
Professeur associé auprès de l’Institut d’études politiques de Paris et de l’Ecole nationale d’administration, Bernard STIRN est l’auteur de plusieurs ouvrages de référence en droit administratif ainsi que sur les droits et libertés civiles. Son expérience de la haute administration et du système juridictionnel français en fait un expert reconnu de l’articulation entre droit national et droit européen et sa pratique professionnelle a contribué à une meilleure intégration des normes communautaires dans la pratique administrative et la jurisprudence en France.
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L’enregistrement des participants aura lieu entre 10h30 et 11h00. La conférence sera donnée en français avec traduction simultanée en roumain. Nous serions très heureux de votre participation et vous prions de la confirmer auprès de l’IER par courriel (florentina.costache@ier.ro), fax (021 / 314 26 66) ou téléphone (021 / 314 26 96 ou 97), jusqu’au jeudi 24 septembre 2009.
Judicial Review of UN Sanctions by the European Court of Justice
Abstract:
European University Institute (EUI)/Working Paper Series
Karen Knop, Ralf Michaels, Annelise Riles, International Law in Domestic Courts: A Conflict of Laws Approach(April 23, 2009). American Society of International Law Proceedings, Vol. 103, 2009; Duke Law School Public Law & Legal Theory Paper No. 253; Cornell Legal Studies Research Paper No. 09-016. Available at SSRN.
Abstract:
The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system’s jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as “theory through technique.”
In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between laws, without necessarily being committed to any one method or policy. Surprisingly, we demonstrate that it is precisely the seemingly negative features of conflicts – the field’s high degree of technicality disparaged as a “conflict-of-laws machine” and the multitude of theories famously deemed a “dismal swamp” – that figure among the advantages of a conflict-of-laws approach to international law in domestic courts.
A conflict-of-laws approach offers ways to respect the nature of international law as law, without simplifying that nature by characterizing it exactly as domestic law. In addition, seeing the parallel with conflict of laws brings a wealth of experience that can enrich and refine the debate on international law in domestic courts. Finally, the parallel with conflicts changes international law in domestic courts from a specific problem addressed by international and constitutional lawyers into a general problem of relativism – which, we argue, conflict of laws is uniquely positioned to address.
Nu ar trebui sa fie chiar o surpriza. Lucrurile (cam) asa stau. Daca statele membre ale UE sunt ze “masters of the treaties” (EC Treaty, evident si in primu’ rand), daca CE/UE n-are kompetenz-kompetenz, daca s-a abandonatara conceptu’ constitutionalicesc precizat prin fostul Tratatul constitutional, daca UE nu e federatie, daca si iar daca… atunci care, pana la urma, e statutul unei instante de contencios constitutional (suna pretentios, nasha?) dintr-un stat membru al UE? Cine are legitimitatea ultima? Si apoi, unde rezida suveranitatea? Si asa mai departe.
Ei bine, Der Spiegel publica un articol realmente interesant. Il redam in intregime:
Last week’s ruling by the German Constitutional Court, coupled with demands by one conservative party for changes to the constitution, may not only jeopardize Berlin’s schedule for the ratification of the Lisbon Treaty. The Karlsruhe ruling also threatens future steps toward European integration.
But the CSU cares little about past errors. Now the idea is to push ahead and “Gauweiler” them! Last Thursday, the politicians from Bavaria decided to follow up their success with a new set of demands. They want the Lisbon Treaty to be ratified only under condition that the new EU law would only be valid in Germany “in accordance with the decision by the German Constitutional Court.” They are now demanding a solution that gives “maximum” parliamentary influence over future EU policy.
The CSU parliamentary group aims to approve an entire catalog of demands at a party meeting in the former Benedictine monastery of Kloster Banz in mid-July. The Bavarians even want to push through a number of changes to the German constitution. One of these would oblige the government to adhere to the parliament’s position papers on European policy. “Our Constitutional Court demands greater rights of co-determination,” says CSU Secretary General Alexander Dobrindt and “we have to comply. It would be good if the decisions of the lower house of parliament, the Bundestag, and Germany’s upper legislative chamber, the Bundesrat, on changes to the EU Treaty were complemented in the future by a referendum.” “People are going to have to make considerable concessions to us to receive the CSU’s support,” says Thomas Silberhorn, CSU parliamentary group spokesman on EU affairs.
Not all of this is realistic. But it’s a political bombshell that could torpedo the German government’s Lisbon rescue concept. If the coalition partners still have to struggle with major stipulations so shortly before the summer break, then there is no chance of doing a quick and quiet fix that would satisfy the Constitutional Court’s criticism of the accompanying law’s flaws.
Tears of Frustration Ahead
In addition to undermining the effectiveness of Germany’s ratification of the Lisbon Treaty, this could tip the scales for the other European countries that have yet to ratify — namely Ireland, Poland and the Czech Republic. The conditions posed by the court in Karlsruhe will make things “much more difficult than we had imagined,” the leaders of the conservative parliamentary group that combines the CDU and CSU admitted late last week.
That’s putting it mildly. The Bavarians’ “Gauweiler” tactics only provide an inkling of the inner political strife that is in store for Germany. Despite the premature cries of triumph among staunch EU supporters in the ruling coalition and in Brussels, last Tuesday’s ruling on the Lisbon Treaty will yet unleash rage and tears of frustration.
Now that the court in Karlsruhe has spelled out Germany’s role in European unification, this heralds the end of a policy of increasing integration. According to the judges, Germany’s future lies not in “a united Europe” — but rather in Germany. In the future, the most powerful EU partner will also be the most difficult one, even if — despite Gauweiler’s legal challenge — it ends up unconditionally ratifying the Lisbon Treaty.
This would be true even without the conditions proposed by the CSU. The German Constitutional Court has found its own unique way of effectively putting the brakes on European policy.
The judges wrote that “if obvious transgressions of boundaries take place when the European Union claims competences,” then they will call for a “review” to “preserve the inviolable core content of the Basic Law’s constitutional identity.”
That is the kind of wording that goes beyond the dreams of Gauweiler and his friends. It simply means that the court assumes the right to single-handedly determine the boundaries of European integration — in a broad sense and, if necessary, in detail.
Member States Remain ‘Masters of the Treaties’
Frank Schorkopf, a former associate of the judge who authored the ruling, Udo Di Fabio, and now a professor of constitutional law in Göttingen, sees this as a “more intelligent version” of a treaty proviso. It is a “supple, dynamic stipulation,” which allows the Constitutional Court greater flexibility and sensitivity, but also places great future demands on the judges because “the court has thus taken on the responsibility of fulfilling this monitoring function,” says Schorkopf.
The court has prescribed a two-fold approach: The parliamentarians have to add far-reaching monitoring rights to the accompanying law criticized by the judges in Karlsruhe, should it come to the extension of Brussels’ competences provided for under the Lisbon Treaty. In addition, the Constitutional Court will ensure that these monitoring rights are appropriately applied.
After all, making additional demands on the accompanying law is “a fine thing,” says Lüder Gerken, director of the Freiburg-based Center for European Policy. But “the key aspect,” says Gerken, is the court’s statements that member states — including of course Germany — “still remain the masters of the treaties” and “therefore must see to it that there are no uncontrolled, independent centralization dynamics” within the EU.
Part 2: Declaration of War on the European Court of Justice
Although the Karlsruhe ruling points out that it is initially the job of lawmakers to fulfill this “responsibility for integration,” the Constitutional Court ultimately sees this as its own task in the future. By doing so, the German Constitutional Court has essentially declared itself the highest supervisory body in conflicts between Germany and the EU, and thus explicitly placed itself above the European Court of Justice (ECJ).
This borders on a declaration of war on the European Court, which sees itself as the only authority capable of ruling on the validity and applicability of EU law. The judges in Karlsruhe have authoritatively decided that they have won the conflict of competence which has been brewing for years between the two top courts.
Admittedly, the court has included a complicatedly worded supplementary declaration on the Lisbon Treaty that reaffirms the supremacy of the ECJ’s judicial authority. But the judges in Karlsruhe did the same thing with this document as they did with a wide range of contentious issues in the Lisbon Treaty text: They interpreted it in a way that makes it compatible with their view of the distribution of power within the EU as an “association of sovereign national states.” The judicial supremacy is only valid within the boundaries defined by the court in Karlsruhe, and the Lisbon Treaty is only compatible with the German constitution within the confines of the Karlsruhe interpretation.
For instance, it explicitly states in the Lisbon Treaty that the procedures of the EU are based on representative democracy, and the European Parliament is composed of “representatives of the union’s citizens.” However, the judges in Karlsruhe argue that contrary to the claim that the Lisbon Treaty “seems to make according to its wording,” the EU Parliament is not a “representative body of a sovereign European people.”
After all, EU members of parliament were not elected according to the principle of electoral equality, in other words, one man one vote, but rather according to “national contingents,” meaning that a Maltese MEP represents 67,000 Maltese, a Swedish MEP has a constituency of 455,000 Swedes, and in Germany the ratio is 1 to 857,000.
‘An Association of Sovereign States’
The court says that this stands in contradiction to the remainder of EU law, which is built around the central idea of prohibiting discrimination based on nationality. According to the concluding statements of the court’s decision, this contradiction can only be explained by the fact that the EU is not a state but rather an “association of sovereign states” and, consequently, there can be no sovereign citizens’ union as well as no completely representative organ in the form of the European Parliament, with the result that the Bundestag must receive substantially more rights. Quod erat demonstrandum.
The Karlsruhe interpretation thus very elegantly demolishes the old European idea that the recognized democratic deficits in the EU would disappear completely of their own accord by enhancing the rights of the European Parliament — and democracy à la Brussels could one day, as MEP Klaus-Heiner Lehne puts it, “assume the role of the national parliaments.”
The European Parliament, as the judges in Karlsruhe clearly state, is terminally undemocratic — at least when measured against the basic concepts of representative democracy. The “small democratic deficit” of the Union, as Schorkopf puts it, has now been exposed as a “large democratic deficit.”
As a result, the German Constitutional Court concludes that even in the future, Brussels cannot be granted greater scope to enact legislation. This means that the plan to grant Brussels the ability to legislate criminal law in a number of EU policy areas will have to be largely dropped due to the risk of it being “without limits.” The court says that Brussels’ authority to enact legislation on criminal law can only be reconciled with German sovereign rights if jurisdictions are narrowly defined.
A “blanket empowerment” contained in the Lisbon Treaty allows the Council of Ministers to expand the list of criminal offenses “on the basis of developments in crime” and grants the EU the power to enact minimum regulations to combat cross-border crime. However, the Karlsruhe judges contend that the blanket empowerment really only applies to the “cross-border dimension of a specific criminal offense.”
Limits to Further Integration
Primarily, however, the judges declared for the first time that it is imperative to maintain the “space for the political formation of the economic, cultural and social living conditions” in the member states. In this national sanctuary, the judges see both “areas which shape the citizens’ circumstances of life, in particular their private spaces of personal responsibility and political and social security, as protected by their fundamental rights,” as well as “political decisions that particularly depend on a previous understanding of culture, history and language and which discursively unfold in a public political arena organized by party politics and parliament.”
According to the judges’ ruling, these “essential areas of democratic organization” explicitly comprise “citizenship, the civil and military monopoly on the use of force, revenue and expenditure, including external financing and all elements of encroachment that are decisive for the realization of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution.” These important areas also include “cultural issues such as speaking a language, shaping the circumstances concerning family and education, ensuring freedom of opinion, of the press and of association, and accommodating professions of faith or ideology.”
These are the limits that EU member state Germany has to set on future European integration. The “identity” of the German constitutional order may not be damaged by Brussels. Identity takes priority over integration.
Part 3: EU Supporters Are in for a Bumpy Ride
“The European train is no longer headed toward an arbitrary destination with no stops along the way,” says former constitutional judge Paul Kirchhof, adding that the court has marked the Lisbon Treaty as a “clear terminus.” There will be “no European state under the provisions of the German constitution.” And Schorkopf summarizes the ruling in one sentence: “The European Union is a contract-based association of sovereign states, and as such, takes a political back seat.”
And with Germany in the front seat, EU supporters are in for a bumpy ride. No matter what the representatives of the Berlin government decide at the Council of Ministers in Brussels, their decisions will be subjected to three possible tests back home. First, the court wants to ensure that the EU does not overstep its contractual competences. Second, the judges intend to enforce the “subsidiary principal” enshrined in EU law, which largely prohibits Brussels from taking action if a member state can handle the issues in question just as effectively on its own. Third, the judges now reserve the right to conduct an “identity check,” in other words, to test whether Germany still performs the functions that the Constitutional Court itself has defined as national tasks of government.
In order to ensure that the Lisbon Treaty will be treated in future as the Karlsruhe Treaty, the court has submitted a highly unusual request to the Bundestag to pass a new trial law. This could allow every citizen to file a special EU suit with the German Constitutional Court against unpopular European regulations and standards.
Given the new severity on European issues in Karlsruhe, such a procedure could make it almost impossible for Berlin to pursue its own European policy. No matter what German representatives agree to in Brussels, they will now always run the risk of receiving a phone call from Karlsruhe because a clever lawyer like Gauweiler has filed a complaint. This would create an untenable situation for the other 26 member states on the Council.
Limiting Berlin’s Highhandedness
At the same time, however, by more strongly tying the Germans to the political body in Brussels, the court has limited the highhandedness of the German government, which has all too often pushed through political goals that were difficult to achieve back home by going behind the back or against the will of the Bundestag. One example that comes to mind is a statement by the former Economics Minister Wolfgang Clement, a member of the Social Democrats, who voted in favor of an EU software patent guideline in 2005, overriding an explicit decision on the matter by the vast majority of the Bundestag. He said that the will of the German parliament “could not be conveyed internationally.” And the latest violation of the constitutional principles of data self-determination, namely data retention, was also pushed through by the German government, via Brussels, and against the will of the Bundestag.
The European Union directive, by which all European member states must oblige their telecommunications companies to retain data on their customers’ traffic, will presumably be the first test case for the new Karlsruhe rules. The constitutionally guaranteed protection of private space is one of the areas that the court has placed within the context of national identity. And there would be no need to even file a new lawsuit against the directive. After all, a number of constitutional complaints against data retention have been awaiting a decision from Karlsruhe for quite some time.
The judges have never before openly come out against an EU directive. But there’s a first time for everything.
THOMAS DARNSTÄDT, DIETMAR HIPP, RENÉ PFISTER
Gabriele Porretto, The European Union: Counter-Terrorism Sanctions Against Individuals and Human Rights Protection, (June 25, 2009). Transitional Justice Institute Research Paper No. 09-08. Available at SSRN.
Abstract:
This paper reviews some of the cases brought, until 2006, to the Court of First Instance (CFI) of the European Court of Justice by individuals and entities seeking judicial review of EU counter-terrorism sanctions implementing, respectively, UN Security Council Resolution 1267 (1999) and Resolution 1373 (2001).
While the CFI has declined to review EU acts implementing the 1267 sanctions regime, it has recently fully scrutinised and declared invalid an EC regulation implementing Resolution 1373, insofar as it freezes the plaintiff’s assets. The different outcome in the latter case is due to the different features of the 1373 sanctions regime.
The CFI position on the cases originating from the 1267 sanctions regime does not seem to be in line with the current picture of the EU system, where as a result of a long work of judicial construction, the protection of fundamental human rights is well entrenched in the EU Treaty. The Court’s acceptance of a lacuna in the EU human rights framework is all the more worrying if one considers the lack of alternative avenues of redress open to individuals targeted by counter-terrorism sanctions.
Decizia privind Tratatul de la Lisabona. AICI [en].
Dispozitivul sau rezumatul:
Hanno Wehlanda, INTRA-EU INVESTMENT AGREEMENTS AND ARBITRATION: IS EUROPEAN COMMUNITY LAW AN OBSTACLE?, International and Comparative Law Quarterly, vol. 58, Iss. 2, 2009 [*]
Abstract
Bilateral Investment Treaties (BITs) between Member States of the EU have long been all but non-existent. However, with the two most recent rounds of EU enlargement about 190 BITs have become intra-EU. This has not only raised doubts about the conformity of these BITs with EC law, but has also prompted some (including the European Commission) to question the admissibility of arbitral proceedings brought under these Treaties. The article assesses the mechanisms through which a conflict between intra-EU BITs and EC law can become relevant from an arbitration perspective. It then analyses the principal alleged inconsistencies between BIT provisions and EC law: differing substantive standards of investment protection, unequal treatment of investors from different Member States and the lack of control by the ECJ. The discussion of these issues in the light of the relevant EC Treaty provisions shows that EC law should not, in fact, be regarded as an obstacle to intra-EU investment arbitration.
Stimată Doamnă/Stimate Domn,
Centrul de Studii de Drept European (CSDE) al Institutului de Cercetări Juridice din cadrul Academiei Române organizează la data de 20 mai 2009, ora 13, în Sala de consiliu de la sediul său, Calea 13 Septembrie, nr. 13,
Colocviul
«Interpretarea şi aplicarea regulamentului comunitar în dreptul naţional. Condiţii şi elemente. Studiu de caz: Regulamentul (CE) nr. 1408/71».
Aplicarea unui act comunitar de către instanţele jurisdicţionale din România, în speţă a unui regulament, va deveni, în timp, o obişnuiţă. Considerăm necesar, ca în seria dezbaterilor referitoare la interpretarea şi aplicarea dreptului comunitar în România, iniţiate în cadrul Centrului nostru, să discutăm hotărârea Tribunalului Bucureşti în care au fost aplicate Regulamentul CEE nr. 1408/71 al Consiliului din 14 iunie 1971 privind aplicarea regimurilor de securitate socială în raport cu lucrătorii salariaţi şi cu familiile acestora care se deplasează în cadrul Comunităţii şi Regulamentul (CEE) nr.574/72 al Consiliului din 21 martie 1972 de stabilire a normelor de aplicare a Regulamnetului (CEE) nr. 1408/71 privind aplicarea regimurilor de securitate socială în raport cu salariaţii şi cu membrii familiilor acestora care se deplasează în interiorul Comunităţii.
Dezbaterea îşi propune realizarea unui schimb de puncte de vedere din perspectiva teoreticienilor şi mai ales a practicienilor (judecători şi avocaţi).
Lucrările vor fi onorate de prezenţa unor cunoscuţi practiceni. Până în prezent, au confirmat participarea Dragoş Călin, judecător – Curtea de Apel Bucureşti şi dr. Andrei Săvescu.
Colocviul ar urma să se centreze asupra următoarelor chestiuni, lista nefiind exhaustivă:
- efectul direct al dispoziţiilor de drept comunitar (primar şi derivat) ;
- aplicabilitatea directă în ordinea juridică naţională a regulamentului ca act normativ comunitar ;
- semnificaţia principiului egalităţii de tratament în contextul Regulamentului 1408/71.
Participarea se face numai pe bază de invitaţie, care poate fi obţinută printr-o cerere adresată Centrului (inclusiv prin e-mail la mihai.sandru@gmail.com) în care solicitanţii sunt rugaţi să menţioneze: numele şi prenumele, afilierea instituţională şi funcţia precum şi domeniul de interes în materia dreptului european. Invitaţiile pot fi obţinute până la 19 mai 2009.
Este încurajată particularea la lucrările colocviului cu prezentări vizând subiectele enumerate anterior, dar şi referitoare la orice alte chestiuni conexe ce ar putea fi de interes. În acest sens, doritorii pot adresa o solicitare de înscriere pe lista vorbitorilor, trimiţând şi un scurt rezumat al principalelor puncte ce ar urma să fie atinse, la adresa de e-mail icj.csde@gmail.com.
Lucrările şi prezentările susţinute cu ocazia colocviului urmează a fi publicate, de către Centru, într-un volum care va apărea la Editura Universitară – editură recunoscută de CNCSIS.
Informaţii suplimentare şi materiale referitoare la colocviu vor fi disponibile la adresa eubusinesslaw.wordpress.com.
CSDE vă mulţumeşte pentru retransmiterea acestei invitaţii către toate persoanele interesate.
Cu stimă,
Conf. univ. dr. Mihai Şandru
Partener media principal: juridice.ro
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Ecouri: Jus Juventutis.
Katja S. Ziegler, Strengthening the Rule of Law, But Fragmenting International Law: The Kadi Decision of the ECJ from the Perspective of Human Rights, (April 2009). Human Rights Law Review, Vol. 9, No. 2, 2009; Oxford Legal Studies Research Paper No. 11/2009. Available at SSRN.
Abstract:
The article analyses the ECJ’s decision in the appeals of Kadi and Al Barakaat. It first considers its importance for the constitutionalisation of the EU legal order. It argues that the judgment is significant because the ECJ asserts a new hierarchy within the EC legal order between economic freedoms and wider ‘constitutional principles’ and because it confirms that a Community based on the rule of law has practical significance. A second line of analysis concerns the repercussions of the judgment on the international legal order. On the one hand the article considers that a Solange-type redefinition of the relationship between the international and the EU legal order is possible, which might provide impetus for the development of human rights protection in international law. On the other hand, it raises also the question whether a human rights friendly and rule-of-law based result could have been achieved by a reasoning that is less antagonistic towards international law because fragmentation of international law might not always increase accountability over the long-term.
Volumul este “transcrierea” unei conferinte.
John Ahern and William Binchy (eds.), The Rome II Regulation on the Law Applicable to Non-Contractual Obligations. A New International Litigation Regime, Brill, 2009. [*]
Introduction: Rome
Johan Meeusen, Rome
Janeen Carruthers, Has the Forum Lost Its Grip?
Russell J. Weintraub, Rome II: Will it Prevent Forum Shopping and Take Account of the Consequences of Choice of Law?
Andrew Scott, The Scope of ‘Non-Contractual Obligations’
Richard Fentiman, The Significance of Close Connection
Thomas Kadner Graziano, Freedom to Choose the Applicable Law in Tort – Articles 14 and 4(3) of the Rome II Regulation
Alex Mills, The Application of Multiple Laws Under the Rome II Regulation
Jan von Hein, Article 4 and Traffic Accidents
Peter Stone, Product Liability under the Rome II Regulation
Adam Rushworth, Remedies and the Rome II Regulation
Michael Bogdan, The Treatment of Environmental Damage in Regulation Rome II
Stephen G.A. Pitel, Rome II and Choice of Law for Unjust Enrichment
Liz Heffernan, Rome II: Implications for Irish Tort Litigation
Gernot Biehler, The Limits of Rome II
Appendices
- Regulation No. 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II)
- Commission of the European Communities Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations, COM (2003) 427 fi nal 2003/0168 (COD)
- Opinion of the European Economic and Social Committee on the Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations, COM (2003) 427 final 2003/0168 (COD), 2004/C 241/01
- European Parliament Committee on Legal Aff airs, Report on the proposal for a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”) (COM(2003)0427–C5 0338/2003–2003/0168(COD)), A6–0211/2005
- Amended Proposal for a European Parliament and Council Regulation on the Law Applicable to Non-Contractual Obligations, COM 2006 83 final
- European Parliament Recommendation for Second Reading on the Council common position for adopting a regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations, 9751/7/2006–C6–0317/2006–2003/0168(COD)
- Joint text approved by the Conciliation Committee of a Regulation on the Law Applicable to Non-Contractual Obligations, 2003/0168(COD) C6–0142/2007 PE-CONS3619/07
Czech Senate committee nods to EU-related special mandate of govt
Prague – The special mandate of the government that would bar it from transferring Czech national powers to the EU without the parliament’s consent is sure of being introduced now that the Senate constitutional and legal committee has nodded to the relevant legislation, Senator Jirina Rippelova told CTK.
The committee today approved the amendments to the orders of procedure of the two houses of parliament in view of the possible Czech ratification of the EU’s Lisbon treaty. The amendments secure the special mandate’s observance.
The Senate is to vote on the amendments and on the Lisbon treaty at its plenary session in early May.
Senators for the Civic Democratic Party (ODS), many of whom are known as Eurosceptics, have set the passage of the amendments as a condition for their support of the Lisbon treaty’s ratification.
The treaty cannot make it through the upper house without support of at least some ODS senators, the strongest party in parliament and in the outgoing Czech government.
The lower house approved the Lisbon treaty in February, also by the votes of several ODS deputies.
If the treaty were approved by the Senate as well, it would be submitted to President Vaclav Klaus, its staunch critic, for signing.
The amendments to the two houses’ orders of procedure define the range of possible EU decisions which the Czech government or president would not be able to join on Prague’s behalf without the previous consent from parliament.
These are mainly decisions that would extend the cases of the EU decision-making on the basis of a qualified majority instead of an unanimous vote, and decisions that would extend the EU’s powers beyond its current basic legislation.
In connection with the Lisbon treaty, the amendments also deal with the Czech parliament’s way of discussing EU norms and the Czech parliament’s right to turn to the European Court of Justice and challenge European regulations or decisions over suspected breach of the principle of subsidiarity.
Albert Posch, THE KADI CASE: RETHINKING THE RELATIONSHIP BETWEEN EU LAW AND INTERNATIONAL LAW?, 15 Colum. J. Eur. L. Online 1 (2009)Conclusion:
The ECJ’s Kadi judgment leaves us with a number of open questions regarding its effects on the structure of the international legal order.[27] Indeed, the question must be asked whether the primacy of UN Charter obligations is jeopardized.[28]
In fact, the ECJ did not establish a new hierarchical structure regarding the interplay between international law and European law. Rather, the Court emphasized the primacy of obligations under the UN Charter. It also highlighted that the (European) review of lawfulness applies only to Community acts and never to acts of the UN Security Council under Chapter VII of the UN Charter, even if such a review were to be limited to examination of the compatibility of that resolution with jus cogens. Thus, at first the ECJ did not challenge the existing hierarchy of norms within the international legal order. But at the same time, by emphasizing the rule of law the Court stated that the judicial review also covers all Community acts, even if they are designed merely to give effect to resolutions adopted by the UN Security Council.
In effect, this approach of reciprocal concessions only works if there is a way to implement UN Security Council resolutions in conformity with fundamental rights of the EU. If it would only be possible to put a resolution into effect by adopting a Community act which breaches fundamental rights-if there were a real conflict between obligations arising under the UN Charter on the one hand and EU fundamental rights as “principles that form part of the very foundations of the Community legal order” (para. 304) on the other-EU fundamental rights prevail. Thus, the ECJ’s commitment to accept the primacy of UN Charter obligations and the integrity of UN Security Council resolutions ends in the absence of discretional power to implement such resolutions in a fundamental rights-friendly way. Therefore, a lack of discretion implies an obligation to give preference to fundamental rights even if this means a breach of UN Charter obligations; this could entail a “challenge to the primacy of that resolution in international law,” in contradiction to the explanations of the ECJ (para. 288).
The judgment of the ECJ in Kadi represents a strong commitment to fundamental rights and the (European) rule of law. Advocate General Maduro found an appropriate summary in advance: “[M]easures which are incompatible with the observance of human rights . . . are not acceptable in the Community.”[31] From a global perspective, the ECJ’s insistance on the protection of European fundamental rights standards means that political bodies are now on the ball. The ECJ made it harder for the UN Security Council to adhere to violations of fundamental rights. As such, Kadi stands for a new bottom-up process in which a regional court pressures the UN Security Council to change its policy towards fundamental rights.
{*}
Ei bine, anul trecut, Consiliul European (nu Consiliul Europei, sic!), in concluziile sale (si in declaratia anexata respectivului document), a enuntat o serie de garantii juridice doar sa avanseze ratificarea Tratatului de reforma (i.e. Lisabona). Nici atunci situatia nu era clara; situatia este neclara si in prezent. Cu alte cuvinte, juridic, cum s(e)-ar (poate) putea proceda?
Recent, a aparut o luare de pozitie ce merita atentie, cea a lui Andrew Duff; din Irish Times.
THE GOVERNMENT’S plan to have guarantees on the Lisbon Treaty added to the EU treaties by means of the Croatian accession treaty has run into opposition in the European Parliament.
The plan, which was announced by French president Nicolas Sarkozy last December, is intended to provide cast-iron legal guarantees to Irish voters ahead of a second referendum in the autumn.
Liberal MEP Andrew Duff, who is one of three MEPs who sat on the intergovernmental conference that drew up the treaty, told journalists yesterday that adding an Irish-specific protocol with the legal guarantees to an accession treaty was not legally possible.
“Adding this protocol to the Croatian accession treaty would leave the treaty wide open to attack in the courts,” said Mr Duff.
He added that rules in the EU treaties governing accession treaties only allow issues pertaining to a state’s accession to be dealt with.
Mr Duff said the procedures to allow for a general revision of the European treaties were different and the insertion of an Irish protocol into the EU treaties may have to wait for a new EU reform treaty to be drawn up and ratified.
He cited the example of Denmark, which had to wait five years before the guarantees and opt-outs it received after its No vote against the Maastricht treaty in 1992 were embedded in the EU treaties. The Danish guarantees were finally embedded in the EU treaties by means of the Amsterdam Treaty.
Taoiseach Brian Cowen has lobbied EU leaders to have legal guarantees on Lisbon regarding social/ethical issues, neutrality and taxation incorporated into the existing EU treaties at the earliest possible opportunity.
Embedding the guarantees into the treaties would provide a higher level of legal assurance in the eyes of the European Court of Justice than a stand-alone decision by the European Council on the guarantees.
But most EU analysts do not expect a new EU reform treaty to be agreed by states for many years, leaving the Croatian accession treaty as the best hope for the Irish Government.
In the Dáil yesterday, Mr Cowen reiterated that the guarantees on the Lisbon treaty promised by EU leaders last December “must be legally robust in order to reassure the public about the treaty”. “Whilst I respect the fact that other member states do not wish to re-ratify the Lisbon Treaty, I made it clear that for my part the legal guarantees will have to be attached to the EU treaties at the next possible opportunity,” he added.
At an EU summit last December, Mr Sarkozy supported the Government’s request. “To give a legal value to the engagements made to Ireland by the 26 other member states, we have committed that at the time of the next EU enlargement – whether that will be in 2010 or in 2011, when probably Croatia will join us . . . we will use that to add a protocol [on Ireland] to Croatia’s accession treaty,” Mr Sarkozy told journalists at the meeting.
Mr Duff’s opposition could not overturn a decision of the European Council, but the conclusions of last December’s summit meeting do not include any reference to using the Croatian accession treaty to incorporate the Irish guarantees in the EU treaties.
EU diplomats said yesterday that a final decision on how to structure the guarantees to provide legal certainty to Ireland would not be made until an EU summit planned for June.
Minister of State for European Affairs Dick Roche said yesterday he did not agree with Mr Duff’s analysis and stressed that a decision on the guarantees had been taken last December.
“Frankly I don’t agree with him and I don’t think anyone else agrees with him either,” said Mr Roche, who added the Government may not seek to attach the protocol to the Croatian accession treaty but could ask states to ratify an Irish protocol separate from it.
It is unclear if the other 26 EU states would be willing to ratify an Irish protocol laying out guarantees on Lisbon on its own, to allow them to be embedded into the treaties.
Judgment Day, The Economist, 26.03.2009.
The Constitutional Court is to rule on the European Union’s Lisbon treaty, which critics say could put the judges out of business. In February it heard arguments that the treaty would give the EU the attributes of a state without making it democratically accountable, and would sap the court’s powers to protect the fundamental rights of Germans. Yet few court-watchers expect the judges to throw Lisbon out. Germany’s EU membership is enshrined in the constitution; and the court has long-standing partnerships with the European Court of Justice (ECJ) in Luxembourg and the European Court of Human Rights in Strasbourg. Lisbon would tilt the balance of power a bit toward Luxembourg, but not as far as its opponents fear. The Constitutional Court is in some people’s eyes Germany’s most powerful institution. The court is revered partly because Germans’ affinity for the rule of law is greater than for democracy, some scholars say. The German constitution, or basic law, which will mark its 60th birthday on May 23rd, is a never-again document. Its first article declares that “human dignity shall be inviolable”. It endows Germany with a weak president and strong state governments. Hans-Jurgen Papier, the court’s president, thinks its reputation for activism is exaggerated.
