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Community Law (community + law)
Selected AbstractsBeyond Multilingualism: On Different Approaches to the Handling of Diverging Language Versions of a Community LawEUROPEAN LAW JOURNAL, Issue 1 2010Theodor Schilling This article deals with a problem created by the EU's multilingualism, the fallibility of translators and the ruses of politicians: for different reasons, it is quite common that equally authentic language versions of a Community law have different meanings if taken on their own. While the ECJ's uniform interpretation approach to this problem, which must be seen as required under the non-discrimination principle, has permitted equitable results in those cases decided by the ECJ, it would not be adequate for the simplest type of case, ie that a citizen has every reason to trust her own language version of a law. In such a case, her legitimate expectations in the equal authenticity of that version requires protection. De lege lata the article therefore proposes, in the interest of generally equitable solutions, a balancing, in the individual case, of the protection of legitimate expectations and the non-discrimination principle. De lege ferenda it proposes a more radical solution, ie that there be only one authentic version of every Community law. [source] Maximum Residue Limits of Veterinary Medicinal Products and Their Regulation in European Community LawEUROPEAN LAW JOURNAL, Issue 2 2003Robert Ancuceanu This paper proposes a legal analysis of a legal and empirical tool (maximum residue limits (MRLs)) designed to protect the consumers of animal foodstuffs, as it is regulated in European Community law. After introducing the concept of MRLs in its legal context, MRLs are defined and the need for harmonisation in this field is explained. Then the main rules governing the establishment of MRLs at a Europe-wide level are expounded, an important place being devoted to some problems occurred in the cases decided by the European Court of Justice: is it possible to establish an MRL only for certain therapeutic indications? What about the intention of placing on the market in the establishment of an MRL? Is the procedure for the establishment of MRLs a tight or lax one? The answer to some of these questions involves more general aspects of European Community law. [source] The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community LawEUROPEAN LAW JOURNAL, Issue 1 2000Gabriele Britz The legislative procedure established by Articles 138-139 of the Amsterdam Treaty is sensitive with regard to democratic prerequisites, but does not, in the final analysis, breach the formal principle of democracy established under Community law. Although the establishment of a parliamentary right of consultation is desirable, sufficient democratic legitimation is nonetheless supplied by virtue of Council and Commission participation within the legislative procedure and by their unlimited right to examine and reject substantive provisions designed by management and labour. By the same measure, the participation of management and labour in the Articles 138-139 legislative process is not of itself sufficient to create democratic legitimation. However, although management and labour organisations might never claim to represent the public of Europe as a whole, they can contribute to the ,substantive' legitimacy of European social law-making where they are adequately representative of persons and groups affected by EC legislative acts and take positive steps to ensure that the interests of such persons are reflected in secondary EC law. Accordingly, the Commission and the Council should review the representative nature of organisations engaged in European social law-making, paying particular attention to under-represented interests and, if necessary, should also make use of their right of rejection where privately negotiated agreements neglect these interests. [source] Gender Quotas in Politics: The Greek System in the Light of EU LawEUROPEAN LAW JOURNAL, Issue 1 2010Panos Kapotas Positive action is currently gaining momentum in the European anti-discrimination discourse and policy-making as a necessary and effective tool to achieve the goal of full and effective equality in employment. Gender quotas in politics, however, are thought to remain outside the normative scope of Community law, the dominant view being that candidature for elected public office does not constitute employment in the sense of the relevant provisions. This article seeks to examine the Greek quota system for women in politics in its dialectical relationship to the general equality discourse and with reference to the current normative framework in Europe. The aims are threefold: to assess the legality of positive action in favour of women in politics from the point of view of EU law, to evaluate the effectiveness of the Greek system in achieving its gender equality goals, and to identify the problems that quotas in politics may pose with regard to the principle of democratic representation. It will, thus, be argued that positive measures in politics, though generally compatible with the fundamental principles of justice and representative democracy, may nevertheless be inadequate,at least in their current form,to provide effective solutions to the unequal distribution of social and political power. [source] Beyond Multilingualism: On Different Approaches to the Handling of Diverging Language Versions of a Community LawEUROPEAN LAW JOURNAL, Issue 1 2010Theodor Schilling This article deals with a problem created by the EU's multilingualism, the fallibility of translators and the ruses of politicians: for different reasons, it is quite common that equally authentic language versions of a Community law have different meanings if taken on their own. While the ECJ's uniform interpretation approach to this problem, which must be seen as required under the non-discrimination principle, has permitted equitable results in those cases decided by the ECJ, it would not be adequate for the simplest type of case, ie that a citizen has every reason to trust her own language version of a law. In such a case, her legitimate expectations in the equal authenticity of that version requires protection. De lege lata the article therefore proposes, in the interest of generally equitable solutions, a balancing, in the individual case, of the protection of legitimate expectations and the non-discrimination principle. De lege ferenda it proposes a more radical solution, ie that there be only one authentic version of every Community law. [source] Family Reunification Rights of (Migrant) Union Citizens: Towards a More Liberal ApproachEUROPEAN LAW JOURNAL, Issue 5 2009Alina Tryfonidou Over the years, in the case-law of the European Court of Justice (ECJ) determining the availability of family reunification rights for migrant Member State nationals, the pendulum has swung back and forth, from a ,moderate approach' in cases such as Morson and Jhanjan (1982) and Akrich (2003), towards a more ,liberal approach' in cases such as Carpenter (2002) and Jia (2007). Under the Court's ,moderate approach', family reunification rights in the context of the Community's internal market policy are only granted in situations where this is necessary for enabling a Member State national to move between Member States in the process of exercising one of the economic fundamental freedoms; in other words, where there is a sufficient link between the exercise of one of those freedoms and the need to grant family reunification rights under EC law. Conversely, under the Court's ,liberal approach', in order for family reunification rights to be bestowed by EC law, it suffices that the situation involves the exercise of one of the market freedoms and that the claimants have a familial link which is covered by Community law; in other words, there is no need to illustrate that there is a link between the grant of such rights and the furtherance of the Community's aim of establishing an internal market. The recent judgments of the ECJ in Eind and Metock (and its order in Sahin) appear to have decidedly moved the pendulum towards the ,liberal approach' side. In this article, it will be explained that the fact that the EU is aspiring to be not only a supranational organisation with a successful and smoothly functioning market but also a polity, the citizens of which enjoy a number of basic rights which form the core of a meaningful status of Union citizenship, is the major driving force behind this move. In particular, the move towards a wholehearted adoption of the ,liberal approach' seems to have been fuelled by a desire, on the part of the Court, to respond to a number of problems arising from its ,moderate approach' and which appear to be an anomaly in a citizens' Europe. These are: a) the incongruity caused between the (new) aim of the Community of creating a meaningful status of Union citizenship and the treatment of Union citizens (under the Court's ,moderate approach') as mere factors of production; and b) the emergence of reverse discrimination. The article will conclude with an explanation of why the adoption of the Court's liberal approach does not appear to be a proper solution to these problems. [source] A European Legal Method?EUROPEAN LAW JOURNAL, Issue 1 2009On European Private Law, Scientific Method This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations. [source] In Search of Better Quality of EU Regulations for Prompt Transposition: The Brussels PerspectiveEUROPEAN LAW JOURNAL, Issue 5 2008Michael Kaeding The quality of EU regulation is crucial to ensuring that Community law is promptly transposed into national law within the prescribed deadlines. But good quality transposition (clear, simple, and effective) goes beyond pre-legislative consultation processes and more frequent use of impact assessments as agreed in the 2003 Interinstitutional Agreement on Better Lawmaking. Presenting new data that covers the full population of all EU transport directives from 1995 to 2004,including the national implementing instruments of France, Germany, Greece, Italy, Ireland, Spain, Sweden, the Netherlands and the UK,this study shows that elements of the EU directives delay transposition. The binding time limit for transposition, the EU directive's level of discretion, its level of detail, its nature and further characteristics of the directive's policy-making process are all factors. These determining factors are crucial to explaining why Member States miss deadlines when transposing EU Internal Market directives. Brussels' efforts to simplify and improve the regulatory environment have to go beyond more preventive action to strengthen the enforcement of EU legislation at the member-state level if they want to address the Internal Market constraining effects of Member States' non-compliance. This study argues that far-reaching decisions made in the European Commission's drafting and EU policy-making phase have the greatest effect on the European regulatory framework in which businesses operate and the free movement of goods, persons, services, and capital is at stake. Implementation should be part of the design. [source] Employee Rights on Transfer of Undertakings: Italian Legislation and EC LawEUROPEAN LAW JOURNAL, Issue 1 2008Marco Novella The investigation takes place on the assumption that the principle of primacy of Community law applies, which first and foremost means that it must be verified whether the domestic legislation in question complies with the interpretation given to the relative provisions of Community law. According to the authors' opinion, domestic law could be judged as non-conforming to the interpretation that has been given by the Court of Justice, so that the question may be brought before the Court of Justice ex Article 226 EC or by recourse to the preliminary ruling procedure under Article 234 EC, which reveal cases of incorrect implementation of the Directive. [source] Maximum Residue Limits of Veterinary Medicinal Products and Their Regulation in European Community LawEUROPEAN LAW JOURNAL, Issue 2 2003Robert Ancuceanu This paper proposes a legal analysis of a legal and empirical tool (maximum residue limits (MRLs)) designed to protect the consumers of animal foodstuffs, as it is regulated in European Community law. After introducing the concept of MRLs in its legal context, MRLs are defined and the need for harmonisation in this field is explained. Then the main rules governing the establishment of MRLs at a Europe-wide level are expounded, an important place being devoted to some problems occurred in the cases decided by the European Court of Justice: is it possible to establish an MRL only for certain therapeutic indications? What about the intention of placing on the market in the establishment of an MRL? Is the procedure for the establishment of MRLs a tight or lax one? The answer to some of these questions involves more general aspects of European Community law. [source] The European Charter of Fundamental Rights A Changed Political Opportunity Structure and its Normative ConsequencesEUROPEAN LAW JOURNAL, Issue 2 2001Christoph Engel The European Community is about to enlarge its de facto constitution by a fundamental rights charter. It is intended to become legally binding, at least in the long run. If it is, it will profoundly change the political opportunity structure between the Community and its Member States, among the Member States, among the organs of the Community and in relation to outside political actors. When assessing the new opportunities, one has to keep in mind the weak democratic legitimation of European policy making and its multi-level character. The article sketches the foreseeable effects and draws consequences from these insights for the dogmatics of the new fundamental rights, their relation to (other) primary Community law and to other fundamental rights codes. It ends with a view to open flanks that cannot be closed by the dogmatics of the freedoms themselves, but call for an appropriate design of the institutional framework. [source] Equality and Constitutional Indeterminacy An Interpretative Perspective on the European Economic ConstitutionEUROPEAN LAW JOURNAL, Issue 2 2001Alexander Somek It is claimed that European supranationalism represents an unprecedented mode of political association whose point is to maintain what is good about nationality and the nation state by stripping the latter of its adverse effects. In this article, this claim is submitted to a test by examining how different ways of conceiving of anti-discrimination in the context of intra-Community trading law give rise to two different conceptions of the European economic constitution. While the first one is married to the ideal of behavioural anti-discrimination,that is, of affording protection against discriminatory acts by Member States,whose application would seemingly leave the nation state in its place, the other one takes a system of nation states as something that in and of itself engenders systematically discriminatory effects on international trade. According to the latter, effective anti-discrimination presupposes overcoming such a system altogether. Both conceptions of the economic constitution are manifest in Community law, and at first glance it appears as if adherence to the first one would be consonant with supranationality as a special mode of political association. However, owing to internal predicaments arising from the application of the equality principle (understood as a principle protecting against discrimination), the difference between both conceptions cannot be upheld in practice. Since the first conception is constantly undermined by the second in the course of its application, it remains uncertain, at least in this context, whether or not the European nation state is left in place by the European Economic Constitution. [source] Union Citizenship,Metaphor or Source of Rights?EUROPEAN LAW JOURNAL, Issue 1 2001Norbert Reich After nearly ten years of introducing Union Citizenship as a concept into Community law it seems time to draw a preliminary evaluation of its importance in reshaping the legal and social positions of citizens living in the EU, more precisely in its Member States. The balance sheet is however mixed: On the one hand, the prevalent position in legal doctrine seems to be that Union citizenship is merely a derived condition of nationality, while on the other side certain fundamental rights are based on criteria other than citizenship/nationality alone. The European Charter on Fundamental Rights will not overcome this dilemma. This can be shown in conflictual areas which are in the centre of discusion in the paper, namely the (limited!) use of the concept of citizenship to extend existing free movement rights in the new case law of the Court of Justice, the resistance towards granting ,quasi-citizenship' rights to third country nationals lawfully resident in the Union for a longer period of time, and the yet unsolved problem of imposing ,implied duties' based on a doctrine of ,abus de droit' upon citizens paralleling the rights granted to them. As a conclusion the author is of the opinion that the question asked for in the title can be answered in the positive only to a limited extent. Citizenship appears to be a sleeping fairy princess still be be kissed awake by the direct effect of Community law. [source] The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community LawEUROPEAN LAW JOURNAL, Issue 1 2000Gabriele Britz The legislative procedure established by Articles 138-139 of the Amsterdam Treaty is sensitive with regard to democratic prerequisites, but does not, in the final analysis, breach the formal principle of democracy established under Community law. Although the establishment of a parliamentary right of consultation is desirable, sufficient democratic legitimation is nonetheless supplied by virtue of Council and Commission participation within the legislative procedure and by their unlimited right to examine and reject substantive provisions designed by management and labour. By the same measure, the participation of management and labour in the Articles 138-139 legislative process is not of itself sufficient to create democratic legitimation. However, although management and labour organisations might never claim to represent the public of Europe as a whole, they can contribute to the ,substantive' legitimacy of European social law-making where they are adequately representative of persons and groups affected by EC legislative acts and take positive steps to ensure that the interests of such persons are reflected in secondary EC law. Accordingly, the Commission and the Council should review the representative nature of organisations engaged in European social law-making, paying particular attention to under-represented interests and, if necessary, should also make use of their right of rejection where privately negotiated agreements neglect these interests. [source] Affirmative Action in Women's Employment: Lessons from CanadaJOURNAL OF LAW AND SOCIETY, Issue 1 2006Nicole Busby The use of affirmative action to increase women's representation in employment is recognized under European Community law. The European Court of Justice has identified affirmative action permissible under EC law and what constitutes reverse discrimination, deemed incompatible with the equal treatment principle. Despite these developments, gendered occupational segregation , vertical and horizontal , persists in all member states as evidenced by enduring pay gaps. It is widely argued that we now need national measures which take advantage of the appropriate framework and requisite political will which exists at the European level. Faced with a similar challenge, the Canadian government passed the Employment Equity Act 1986 which places an obligation on federal employers to implement employment equity (affirmative action) by proactive means. Although subject to some criticism, there have been some improvements in women's representation since its introduction. This article assesses what lessons might be learned from Canada's experience. [source] | ||||||||||