In the beginning Labour Law and Social Security Law were of little significance in the development of European Law. They only played a very minor role in the founding Treaties of the European Communities as their aim was primarily to harmonise economic, not social conditions. 50 years after the Rome Treaties the situation is completely different – there is more and more awareness that the only way to further develop European Law and the European Union as a whole is by not only getting rid of competitive constraints but also by making the citizens of Europe aware of its social dimension.
Now is therefore a good time for an outline of European Labour Law. This textbook was written mainly with students in mind that are specialising in Labour Law but it also gives practising labour lawyers an overview of the most important regulations and judgments on this subject. References were deliberately kept to a minimum, instead numerous examples and a summary of the most significant judgments of the ECJ illustrate vividly the contentious issues.
Gregor Thüsing is Professor of Labour Law and Social Security Law at the University of Bonn.
This book examines the treatment of joint ventures (JVs) in EU Competition Law, and at the same time provides a comparison with US law. It starts with an analysis of the rather elusive concept of JV, encompassing both concentrative JVs (subject to merger control) and non-concentrative JVs. Although focused on possible definitions of joint ventures in terms of competition law, it also includes a broader perspective (going beyond competition law) on the different legal models of structuring cooperation links between undertakings.
At the core of the book is an attempt to build an analytical model for the assessment of JVs in terms of antitrust law, especially as regards Article 101 of the TFEU. The analytical model used proposes a set of sequential analytical levels, taking into account structural factors and specific factors related to the main constituent elements of the functional programmes of JVs. The model is applied to a substantive assessment of four main types of JVs identified on the basis of their prevailing economic function: research and development JVs; production JVs; commercialization JVs; and purchasing JVs. Also covered are particular situations of joint ownership of undertakings falling short of joint control.
In the concluding part of the book recent developments in JV antitrust law are put into context within the wider reform of EU Competition Law. The book is also comprehensively updated with the latest developments concerning the reform of the EU framework of horizontal cooperation between undertakings that took place at the end of 2010.
Luis Silva Morais is a Professor at the University of Lisbon Law School (FDL) and holds a Jean Monnet Chair of EU Law (Competition and Economic Regulation). He is a founding partner of ‘Luis Silva Morais – Law Firm’ (based in Lisbon). He has been Vice-President of the Privatization Advisory Board of the Portuguese Ministry of Finance (2001-11), Member of the Board of the Portuguese Insurance and Pension Funds Supervisory Authority-ISP (1998-2001) and currently chairs the Research Centre on Regulation and Supervision of the Financial Sector of FDL in scientific partnership with the Bank of Portugal and the ISP. He is a member of several arbitral courts.
Maurice Adams, Henri de Waele, Johan Meeusen and Gert Straetmans (eds), Judging Europe’s Judges. The Legitimacy of the Case Law of the European Court of Justice, Hart Publishing, 2013
After successive waves of EU enlargement, and pursuant to the entry into force of the Lisbon Treaty, the European Court of Justice finds itself on the brink of a new era. Both the institution itself and the broader setting within which it operates have become more heterogeneous than ever before. The issues now arriving on its docket are also often of great complexity, covering an unprecedented number of fields. The aims of this volume are to study the impact of these developments, examine the legitimacy of the Court’s output in this novel context and provide an appraisal of its overall performance. In doing so, specific attention is paid to its most recent case law on four topics: the general principles of EU law, external relations, the internal market and Union citizenship.
Featuring contributions by Maurice Adams, Henri de Waele, Johan Meeusen and Gert Straetmans, Koen Lenaerts, Ján Mazák and Martin Moser, Stephen Weatherill, Jukka Snell, Michael Dougan, Daniel Thym, Eileen Denza, Michal Bobek, and Joseph Weiler.
Maurice Adams is Professor of General Jurisprudence and ‘vfund’ Professor of Democratic Governance and the Rule of Law at Tilburg University, and Visiting Professor at the Universities of Antwerp and Leuven.
Henri de Waele is Senior Lecturer in European Union Law at Radboud University Nijmegen and Guest Professor of European Institutional Law at the University of Antwerp.
Johan Meeusen is Vice-Rector and Professor of European Union Law and Private International Law at the University of Antwerp, and former holder of a Jean Monnet Chair ad personam.
Gert Straetmans is Professor of European Economic and Commercial Law at the University of Antwerp, and Visiting Professor at the Rheinische Friedrich-Wihelms-Universität Bonn.
Review – European Law Blog, 10.12.2013, Paul Gragl
About the Authors
Introduction: Judging Europe’s Judges
Maurice Adams, Henri de Waele, Johan Meeusen and Gert Straetmans
1. Koen Lenaerts, The Court’s Outer and Inner Selves: Exploring the External and Internal Legitimacy of the European Court of Justice [tradus in RRDE nr. 1/2014]
2. Ján Mazák, Martin Moser, Adjudication by Reference to General Principles of EU Law: A Second Look at the Mangold Case Law
3. Stephen Weatherill, The Court’s Case Law on the Internal Market: ‘A Circumloquacious Statement of the Result, Rather than a Reason for Arriving at It’?
4. Jukka Snell, The Legitimacy of Free Movement Case Law: Process and Substance
5. Michael Dougan, The Bubble that Burst: Exploring the Legitimacy of the Case Law on the Free Movement of Union Citizens
6. Daniel Thym, Towards ‘Real’ Citizenship? The Judicial Construction of Union Citizenship and its Limits
7. Eileen Denza, Placing the European Union in International Context: Legitimacy of the Case Law
JHH Weiler, Epilogue: Judging the Judges – Apology and Critique
Richard Goldberg, Medicinal Product Liability and Regulation, Hart Publishing, 2013
The piecemeal developments in product liability reform in Europe have their origins in the tragic association of phocomelia in children with thalidomide in 1962. In many ways these events have continued to generate pressure for reform of product liability, especially for the victims of drug-induced injury. This monograph attempts to address the major problems that typify claims for drug-induced injury, as well as highlighting the complex interrelationship between liability exposure and drug regulation.
While medicinal products are subject to strict liability under the product liability directive, the claimant may have considerable difficulty in establishing that the relevant product is defective and that it caused the damage. It may also be necessary to overcome the development risk defence where this is pleaded. The monograph addresses these problems on a comparative jurisprudential basis, and seeks to determine whether medicinal products should be treated as a special case in the field of product liability.
It examines the role of epidemiological evidence in assessing causation in product liability cases concerning medicinal products in the light of recent developments in the UK Supreme Court, the United States, Canada and France. In particular, it addresses the difficulties in reconciling the standards of proof in law and science, including the theory that causation can be proved on the balance of probabilities by reference to the doubling of risk of injury. An important case study compares and contrasts the approaches of the UK and the US to the measles, mumps, rubella Litigation.
The book also examines the question as to whether compliance with regulatory standards should protect pharmaceutical manufacturers from product liability suits. It seeks to support a via media whereby the victims of drug induced injury can receive justice, while at the same time encouraging drug safety and innovation in drug development.
Empowerment and Disempowerment of the European Citizen, Edited by Michael Dougan, Niamh Nic Shuibhne and Eleanor Spaventa, 330 p., Hart Publishing
This collection of essays engages with a central theme in scholarship on EU citizenship – the emancipation of certain citizens, the alienation of others – and seeks to expand its horizons to interrogate whether similar debates and trends can be identified in other fields of European integration. The focus of the book is distinctly citizen focused. It delivers the potential for the opening out of analysis of the implications of European citizenship beyond the parameters of Articles 18-25 TFEU and beyond the disciplinary confines of legal analysis alone. The book construes ‘EU citizenship’ in its broadest sense, and explores the extent to which the European citizen is, or indeed is not, genuinely at the heart of EU law and policy-making. Within the broader theme of empowerment and disempowerment, the contributors reflect on a range of cross-cutting themes; for example, the extent to which channels of citizen participation (can) inform EU policy-making in a ‘bottom-up’ sense; or whether the EU is a catalyst for the construction of new spaces and new identities.
Michael Dougan is Professor of European Law, Jean Monnet Chair in EU Law and Dean of the Liverpool Law School at the University of Liverpool.
Niamh Nic Shuibhne is Professor of EU Law at the University of Edinburgh.
Eleanor Spaventa is Professor of EU Law at Durham University.
Jacco Bomhoff, Perfectionism in European law. In: Barnard, Catherine, Gehring, Markus and Solanke, Iyiola, (eds.) Cambridge yearbook of European legal studies, vol. 14, 2011-2012. Hart Publishing, Oxford, UK, pp. 75-100. ISBN 9781849463539
The Cambridge Yearbook of European Legal Studies provides a forum for the scrutiny of significant issues in EU Law, the law of the European Convention on Human Rights, and Comparative Law with a ‘European’ dimension, and particularly those issues which have come to the fore during the year preceding publication. The contributions appearing in the collection are commissioned by the Centre for European Legal Studies (CELS) Cambridge, a research centre in the Law Faculty of the University of Cambridge specialising in European legal issues.
The papers presented are at the cutting edge of the fields which they address, and reflect the views of recognised experts drawn from the University world, legal practice, and the institutions of both the EU and its Member States. Inclusion of the comparative dimension brings a fresh perspective to the study of European law, and highlights the effects of globalisation of the law more generally, and the resulting cross fertilisation of norms and ideas that has occurred among previously sovereign and separate legal orders.
The Cambridge Yearbook of European Legal Studies is an invaluable resource for those wishing to keep pace with legal developments in the fast moving world of European integration.
European Distribution Law. A Commentary, Edited by Eckhard Flohr and Michael Martinek, Hart Publishing, 2013
This handbook covers the European law of distribution, that is, the European primary and secondary legislation, the leading decisions of the European courts and supreme courts of the European Member states, and the common principles of European or international distribution law. The national laws of distribution are covered in so far as they illustrate the implementation of European law, or when they are of outstanding importance for the distribution practice within the European Community. The focus is on supranational EU law relevant for distribution and services, constituting the acquis communitaire in the Member States.
The book is divided into two parts:
Sales agency agreements
General good faith principles
Consumer protection law
Distribution law and labour law
Conflicts of law
Alternative dispute resolution
Aspects of taxation concerning distribution
B) Distribution Agreements in detail
Commercial distribution agreements
Licence and merchandising agreements
Dr Eckhard Flohr practices law in Germany and Austria and is part-time professor specialised in the law of distribution.
Dr Michael Martinek is professor of law at the University of Saarbrucken.
The European Convention for the Protection of Human Rights and Fundamental Freedoms. A Commentary, Edited by Christoph Grabenwarter, Hart Publishing, 2013
The European Convention on Human Rights (ECHR) entered into force on 3 September 1953 with binding effect on all Member States of the Council of Europe. It grants the people of Europe a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination) plus some more by additional protocols to the Convention (Protocols 1 (ETS No. 009), 4 (ETS No. 046), 6 (ETS No. 114), 7 (ETS No. 117), 12 (ETS No. 177) and 13 (ETS No. 187)).
Any person who feels his or her rights under the ECHR have been violated by the authorities of one of the Member States can bring a case to the European Court of Human Rights, established under the Convention. The States are bound by the Court’s decisions. The Committee of Ministers of the Council of Europe make sure that the decisions are properly executed. Today the Court receives thousands of petitions annually, demonstrating the immense impact of the Convention and the Strasbourg Court.
Professor Grabenwarter’s Commentary deals with the Convention systematically, article-by-article, considering the development and scope of each article, together with the relevant case-law and literature.
Christoph Grabenwarter is Professor of Law at the Vienna University of Economics and Business, judge at the Austrian Constitutional Court, and the Austrian member in the Venice Commission on “Democracy through Law”. Professor Grabenwarter has widely published in the field of international business law and public international law with focus on human rights.
Robert O’Donoghue, A Jorge Padilla, The Law and Economics of Article 102 TFEU, Hart Publishing, 2013, 1078 p.,
“This is a truly outstanding book…With regard to many issues, the authors..achieve an analytical depth which is not even matched by many journal contributions dealing exclusively with those particular subjects…a truly seminal book on Article 82 EC that should and will have a major impact on the further development of this area of EC competition law. The book not only deserves to but certainly also will be widely read by academic and practising lawyers and economists concerned with abuse control.” Thomas Eilmansberger, Common Market Law Review
“…this book is one of the best I have come across…the first to thoroughly integrate the economic and legal discussions into a single text…an essential book for any practice dealing in competition law. I would also suggest that it should find its way into university and vocational training law libraries where…a better overall understanding of Art.82 will accrue.” Philip Allery, European Competition Law Review
“This book is an admirable achievement, and the authors are to be congratulated on producing a work of high class and great interest. It is handsomely produced, easy to read, and comprehensive in its scope. Its publication now is timely, as we await the next stage of the Commission’s review of Article 82…a first-rate piece of work that will be highly influential in the years ahead and that will be gratefully referred to by everyone interested in this fascinating but difficult topic. It is very highly recommended.” Richard Whish, Competition Policy International Journal
The Law and Economics of Article 102 TFEU is a comprehensive, integrated treatment of the legal and economic principles that underpin the application of Article 102 TFEU to the behaviour of dominant firms. Traditional concerns of monopoly behaviour, such as predatory pricing, refusals to deal, excessive pricing, tying and bundling, discount practices and unlawful discrimination are treated in detail through a review of the applicable economic principles, the case law and decisional practice and more recent economic and legal writings. In addition, the major constituent elements of Article 102 TFEU, such as market definition, dominance, effect on trade and applicable remedies are considered at length. Jointly authored by a lawyer and an economist, The Law and Economics of Article 102 TFEU contains an integrated approach to the legal and economic principles that frame policy in this major area of competition law. Although written primarily with practitioners and in-house lawyers in mind, it is essential reading for anyone with an interest in competition law enforcement against monopoly behaviour.
Robert O’Donoghue is a barrister at Brick Court Chambers, London and Brussels.
A Jorge Padilla is Senior Managing Director and Head of Compass Lexecon Europe.
Geneviève Helleringer, Kai Purnhagen, Towards a European Legal Culture, Hart Publishing, 2013, ISBN9781849464918.
European harmonisation efforts such as a European civil code, European constitutional treaties, European principles, and European fundamental rights are frequently criticised for building on or creating a European legal culture that does not exist; in reality what we have is European legal pluralism. Some have argued that the pluralistic structure of European law hinders the development of a community, which is a necessary requirement for a European legal culture. And if there can be no common European legal culture then there is no basis for harmonising exercises.
The contributors to this book explore in different legal areas whether in fact the contrary is true. Cultural pluralism might indeed be a distinctive feature of European legal culture. Diversity is not something that is in opposition to, but rather constitutes a new, different understanding of European legal culture. The contributions demonstrate in detail how such an approach inter alia in the areas of private, corporate, administrative and constitutional law furthers understanding of a developing European legal culture, how it offers theoretical and doctrinal insights, and how it adds critical perspective.
Geneviève Helleringer is a fellow of St Catherine’s College and a research fellow at the Institute of European and Comparative Law of Oxford University. Kai Purnhagen is a senior research fellow and lecturer at the Ludwig-Maximilians-University in Munich and a research fellow at the Centre for the Study of European Contract Law at the University of Amsterdam.
Normative Patterns and Legal Developments in the Social Dimension of the EU, Edited by Ann Numhauser-Henning and Mia Rönnmar, Hart Publishing, 2013, 282 p.
This book explores the normative and legal evolution of the Social Dimension – labour law, social security law and family law – in both the EU and its Member States, during the last decade. It does this from a wide range of theoretical and legal-substantive perspectives. The past decade has witnessed the entering into force of the Lisbon Treaty and its emphasis on fundamental rights, a new coordination regulation within the field of social security (Regulation 883/2004/EC), and the case law of the Court of Justice of the European Union in the so-called Laval Quartet. Furthermore structural changes affecting demographics and family have also challenged solidarity in new ways. The book is organised by reference to distinct ‘normative patterns’ and their development in the fields of law covered, such as the protection of established groups, the position of market functional values and the scope for just distribution. The book represents an innovative and important interdisciplinary approach to analysing EU law and Social Europe, and contributes a complex, yet thought-provoking, picture for the future. The contributors represent an interesting mix of well-known and distinguished as well as upcoming and promising researchers throughout Europe and beyond.
Ann Numhauser-Henning and Mia Rönnmar are both Professors of Private Law at Lund University, Sweden.
Pavlos Eleftheriadis, Democracy in the Eurozone (May 15, 2013). WG Ringe and P Huber (eds), Legal Challenges Arising out of the Global Financial Crisis: Bail-outs, the Euro, and Regulation (Oxford: Hart Publishing) (2013, Forthcoming); Oxford Legal Studies Research Paper No. 49/2013. Available at SSRN
In December 2012 Four Presidents of the European Union (of the European Council, the Commission, the Central Bank and the Eurogroup) issued a paper outlining steps for a ‘genuine monetary union’ promising among others better democratic accountability for its institutions. This essay asks if an entity like the European Union – and the Eurozone within it – can indeed become democratic. I distinguish between two approaches to democracy, first as collective self-government or, second, as set of egalitarian institutions. The essay argues that the German Federal Constitutional Court supports the first theory and for that reason is very cautious of the idea of bringing democracy to the European Union. The collective view believes that without a single people, there cannot be self-government. The second theory accepts the primacy of domestic democracy but allows, by contrast, for international institutions of democratic accountability that support domestic democracy. I offer some arguments for this view and conclude that the four Presidents are not mistaken in endorsing the ambition of democratic accountability for the Eurozone. The European Union is a union of peoples. A union of this kind can become more democratic without seeking to become a democracy.
Methodologies of Legal Research. Which Kind of Method for What Kind of Discipline?, Edited by Mark Van Hoecke, Hart Publishing, 2013, 310 p.
Until quite recently questions about methodology in legal research have been largely confined to understanding the role of doctrinal research as a scholarly discipline. In turn this has involved asking questions not only about coverage but, fundamentally, questions about the identity of the discipline. Is it (mainly) descriptive, hermeneutical, or normative? Should it also be explanatory? Legal scholarship has been torn between, on the one hand, grasping the expanding reality of law and its context, and, on the other, reducing this complex whole to manageable proportions. The purely internal analysis of a legal system, isolated from any societal context, remains an option, and is still seen in the approach of the French academy, but as law aims at ordering society and influencing human behaviour, this approach is felt by many scholars to be insufficient.
Consequently many attempts have been made to conceive legal research differently. Social scientific and comparative approaches have proven fruitful. However, does the introduction of other approaches leave merely a residue of ‘legal doctrine’, to which pockets of social sciences can be added, or should legal doctrine be merged with the social sciences? What would such a broad interdisciplinary field look like and what would its methods be? This book is an attempt to answer some of these questions.
Mark Van Hoecke is Research Professor for Legal Theory and Comparative Law at the University of Ghent. From 2008 till 2011 he also held the position of Research Professor for the Methodology of Comparative Law at the University of Tilburg, in which frame this book has been produced.
European Penology?, Edited by Tom Daems, Dirk van Zyl Smit and Sonja Snacken, Hart Publishing, 2013, 384 p.,
Is there something distinctive about penology in Europe? Do Europeans think about punishment and penal policy in a different way to people in other parts of the globe? If so, why is this the case and how does it work in practice? This book addresses some major and pressing issues that have been emerging in recent years in the interdisciplinary field of ‘European penology’, that is, a space where legal scholarship, criminology, sociology and political science meet – or should meet – in order to make sense of punishment in Europe. The chapters in European Penology? have been written by leading scholars in the field and focus in particular on the interaction of European academic penology and national practice with European policies as developed by the Council of Europe and, increasingly, by the European Union.
Tom Daems is Lecturer in Criminology and Sociology of Law at Ghent University, Belgium.
Dirk van Zyl Smit is Professor of Comparative and International Penal Law at the University of Nottingham.
Sonja Snacken is Professor of Criminology, Penology and Sociology of Law at the Vrije Universiteit Brussel, Belgium.
Services and the EU Citizen, Edited by Frank S Benyon, Hart Publishing, 2013.
The importance of services in the EU economy has increased exponentially in the last decades as have the number and scope of EU rules, both those liberalising the provision of services and those protecting their recipients or consumers – the passengers, patients, viewers and bank depositors. However, these consumers, in their capacity as citizens, are increasingly disillusioned with the EU and its institutions.
This book, written by practitioners, academics and advocates before the European Court, reflects on these developments, examining rules in numerous service sectors, from the capping of roaming call charges upheld in the Vodafone decision, through health care, to the requirement for air carriers to care for and compensate passengers approved in the generous Sturgeon judgment. The Court’s positive approach may have been guided by a desire to consolidate the notion of EU citizenship, a status introduced, but without clear content, at Maastricht. The book therefore considers whether these uniform, EU-wide, consumer rights may not form an important component of such European citizenship. The Commission’s proposal to make 2013 European Year of Citizens seems to favour such a view.
* * *
Frank Benyon joined the European Commission’s Legal Service in 1980 and has been a Director there from 2000 to 2010 in charge of the Business Law Team dealing with Establishment, Capital and Services freedoms, in particular in the banking, telecommunications and transport sectors. After university he qualified as a solicitor and practised with Allen and Overy before becoming a partner with Clifford Turner, working successively in their Brussels, Dubai and Paris offices. He is now a Senior Fellow in the Law Department of the European University Institute in Florence.