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'Cumulative Index Volumes 1–48', Issue 1, pp. 1–1 |
info'Cumulative Index Volumes 1–48' (2011) 48 Common Market Law Review, Issue 1, pp. 1–1 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011083 | 
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'Editorial comments: The Union, the Member States and international agreements', Issue 1, pp. 1–7 |
info'Editorial comments: The Union, the Member States and international agreements' (2011) 48 Common Market Law Review, Issue 1, pp. 1–7 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011001 |
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'Constitutional review of EU law after Honeywell: Contextualizing the relationship between the German Constitutional Court and the EU Court of Justice', Mehrdad Payandeh, Issue 1, pp. 9–38 |
infoMehrdad Payandeh, 'Constitutional review of EU law after Honeywell: Contextualizing the relationship between the German Constitutional Court and the EU Court of Justice' (2011) 48 Common Market Law Review, Issue 1, pp. 9–38 | | The relationship between the German Constitutional Court and the Court of Justice of the European Union is defined by the German Court’s controversial claim to review whether EU legal acts are compatible with fundamental rights, whether they stay within the limits of EU competences (ultra vires review), or violate the identity of the German Constitution. While the German Court has developed these three review functions in different ways, the recent decision in the case of Honeywell indicates that the three lines of jurisprudence are deeply interrelated. In Honeywell, the Court developed a remarkably restrictive approach to ultra vires review, thereby following a similar path as in its famous Solange jurisprudence with regard to fundamental rights review. Against this background, Honeywell allows to put the different lines of case law into context in a way that reveals parallel patterns as well as differences in the developments. Evaluating Honeywell in this context illustrates that the Court can also be understood as a political actor that tries to maintain and define its role in the process of European integration and in the European system of multi-level governance. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011002 |
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'Of ages in – and edges of – EU law', Elise Muir, Issue 1, pp. 39–62 |
infoElise Muir, 'Of ages in – and edges of – EU law' (2011) 48 Common Market Law Review, Issue 1, pp. 39–62 | | The notions of primacy and direct effect, as well as the relationship between them, influence the fundamental dynamics of the European Union legal order. Two recent judgments of the European Court of Justice, Mangold and Kücükdeveci, trigger uncertainty regarding the theoretical model underlying the effects of EU law and the circumstances in which EU law can create obligations for individuals. They constitute new landmarks for the identification of the edges of EU law. It is submitted that the Court’s novel approach, allowing for the EU principle of equality to place new obligations on individuals, is founded upon the notion of direct effect. Although the Court does not clearly elucidate why it develops the horizontal direct effect of the principle of equality, it will be suggested that the reach of this case law may be limited to specific areas of EU secondary law (such as anti-discrimination law) actually giving effect to a general principle of EU law. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011003 |
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'The validity and applicability of international investment agreements between EU Member States under EU and international law', Angelos Dimopoulos, Issue 1, pp. 63–93 |
infoAngelos Dimopoulos, 'The validity and applicability of international investment agreements between EU Member States under EU and international law' (2011) 48 Common Market Law Review, Issue 1, pp. 63–93 | | EU law affects the validity and applicability of intra-EU International Investment Agreements (IIAs) both under EU and international law. Although EU law and intra-EU IIAs create separate legal systems, they cover largely the same subject matter creating scope for potential conflicts. Using different tools and based on different legal principles, both EU law and international law require the determination of the specific incompatibilities between EU law and intra-EU IIAs in order to assess whether and to what extent the latter are applicable. In that regard, the provisions of intra-EU IIAs on dispute settlement and in particular investor-State arbitration present an outright incompatibility with EU law, as they violate the principle of autonomy of EU law and, thus, should be deemed inapplicable. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011004 |
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'European consumer protection law: Curia semper dabit remedium?', Verica Trstenjak, Erwin Beysen, Issue 1, pp. 95–124 |
infoVerica Trstenjak, Erwin Beysen, 'European consumer protection law: Curia semper dabit remedium?' (2011) 48 Common Market Law Review, Issue 1, pp. 95–124 | | The article explores the question whether, in the light of the concepts of procedural and remedial autonomy of the Member States, the case law of the ECJ on the enforcement of consumer rights derived from various Consumer Protection Directives is consistent with its case law on the enforcement of individuals’ rights under other branches of EU law. The authors begin by examining the case law of the ECJ on the concepts of procedural and remedial autonomy of the Member States in the context of the enforcement of individuals’ rights derived from EU law in general. Subsequently, the authors proceed with an analysis of the application of those concepts in the most recent case law on the enforcement of consumer rights derived from the Consumer Protection Directives. This part distinguishes between cases concerning national legislation and procedures guaranteeing a higher level of consumer protection than required by those directives (e.g. cases C-509/07, Scarpelli, C-484/08, Caja de Ahorros, C-358/08, Aventis Pasteur) and cases in which national rules fall short of the minimum standards of protection provided for under those directives (e.g. cases C-489/07, Messner, C-215/08, E. Friz, C-511/08, Handelsgesellschaft Heinrich Heine, C-240/98 to C-244/98, Océano Grupo, C-473/00, Cofidis, C-168/05, Mostaza Claro, C-429/05, Rampion and Godard, C-40/08, Asturcom Telecomunicaciones, C-227/08, Martín Martín, C-243/08, Pannon GSM, C-137/08, VB Pénzügyi Lízing). It is submitted that, while the former series of cases reflects a standard application of the concepts of procedural and remedial autonomy, the latter series of cases reveals, in certain regards, a more consumer-oriented approach. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011005 |
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'European company law 1999–2010: Renaissance and crisis', John Armour, Wolf-Georg Ringe, Issue 1, pp. 125–174 |
infoJohn Armour, Wolf-Georg Ringe, 'European company law 1999–2010: Renaissance and crisis' (2011) 48 Common Market Law Review, Issue 1, pp. 125–174 | | European corporate law has enjoyed a renaissance in the past decade. Fifteen years ago, this would have seemed most implausible. In the mid–1990s, the early integration strategy of seeking to harmonize substantive company law seemed to have been stalled by the need to reconcile fundamental differences in approaches to corporate governance. Little was happening, and the grand vision of the early pioneers appeared more dream than ambition. Yet since then, a combination of adventurous decisions by the Court of Justice, innovative approaches to legislation by the Commission, and disastrous crises in capital markets has produced a headlong rush of reform activity. The volume and pace of change has been such that few have had time to digest it: not least policymakers, with the consequence that the developments have not always been well coordinated. The recent financial crisis has yet again thrown many – quite fundamental – issues into question. In this article, we offer an overview that puts the most significant developments of this decade into context, alongside each other and the changing patterns of corporate structure in European countries. Such developments cover, for instance, corporate mobility, corporate freedom of establishment, golden shares case law, as well as the Commission’s Company Law Action Plan CLAP and Financial Services Action Plan FSAP. Harmonization of Member States’ company laws on the rules governing listed companies and the facilitation of cross-border restructuring are also examined. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011006 |
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'Joined Cases C-501, 513, 515 & 519/06 P, GlaxoSmithKline Services Unlimited v. Commission, Judgment of the Court of Justice (Third Chamber) of 6 October 2009, [ECR] I-9291.', Sven B. Völcker, Issue 1, pp. 175–188 |
infoSven B. Völcker, 'Joined Cases C-501, 513, 515 & 519/06 P, GlaxoSmithKline Services Unlimited v. Commission, Judgment of the Court of Justice (Third Chamber) of 6 October 2009, [ECR] I-9291.' (2011) 48 Common Market Law Review, Issue 1, pp. 175–188 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011007 |
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'Case C-45/08, Spector Photo Group NV, Chris Van Raemdonck v. Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA), Judgment of the European Court of Justice (Third Chamber) of 23 December 2009.', Martin Böse, Issue 1, pp. 189–201 |
infoMartin Böse, 'Case C-45/08, Spector Photo Group NV, Chris Van Raemdonck v. Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA), Judgment of the European Court of Justice (Third Chamber) of 23 December 2009.' (2011) 48 Common Market Law Review, Issue 1, pp. 189–201 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011008 |
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'Case C-310/08 London Borough of Harrow v. Nimco Hassan Ibrahim and Secretary of State for the Home Department, Judgment of the Court (Grand Chamber) of 23 February 2010; Case C-480/08 Maria Teixeira v. London Borough of Lambeth and Secretary of State for the Home Department, Judgment of the Court (Grand Chamber) of 23 February 2010.', Charlotte O’Brien, Issue 1, pp. 203–225 |
infoCharlotte O’Brien, 'Case C-310/08 London Borough of Harrow v. Nimco Hassan Ibrahim and Secretary of State for the Home Department, Judgment of the Court (Grand Chamber) of 23 February 2010; Case C-480/08 Maria Teixeira v. London Borough of Lambeth and Secretary of State for the Home Department, Judgment of the Court (Grand Chamber) of 23 February 2010.' (2011) 48 Common Market Law Review, Issue 1, pp. 203–225 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011009 |
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'Case C-154/08, Commission v. Spain, Judgment of the Court (Third Chamber) of 12 November 2009, not yet reported.', Manuel López Escudero, Issue 1, pp. 227–242 |
infoManuel López Escudero, 'Case C-154/08, Commission v. Spain, Judgment of the Court (Third Chamber) of 12 November 2009, not yet reported.' (2011) 48 Common Market Law Review, Issue 1, pp. 227–242 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011010 |
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'Case C-117/06, Proceedings brought by Gerda Möllendorf and Christiane Möllendorf-Niehuus, Judgment of the European Court of Justice (Second Chamber) of 11 October 2007, [2007] ECR I-8361; Case C-340/08, M & Others v. Her Majesty’s Treasury, Judgment of the European Court of Justice (Fourth Chamber) of 29 April 2010, nyr; Case C-550/09, Criminal Proceedings Against E & F, Judgment of the European Court of Justice (Grand Chamber) of 29 June 2010.', Cian C. Murphy, Issue 1, pp. 243–264 |
infoCian C. Murphy, 'Case C-117/06, Proceedings brought by Gerda Möllendorf and Christiane Möllendorf-Niehuus, Judgment of the European Court of Justice (Second Chamber) of 11 October 2007, [2007] ECR I-8361; Case C-340/08, M & Others v. Her Majesty’s Treasury, Judgment of the European Court of Justice (Fourth Chamber) of 29 April 2010, nyr; Case C-550/09, Criminal Proceedings Against E & F, Judgment of the European Court of Justice (Grand Chamber) of 29 June 2010.' (2011) 48 Common Market Law Review, Issue 1, pp. 243–264 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011011 |
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'Book reviews', Issue 1, pp. 265–290 |
info'Book reviews' (2011) 48 Common Market Law Review, Issue 1, pp. 265–290 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011012 |
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'Publications received', Issue 1, pp. 291–298 |
info'Publications received' (2011) 48 Common Market Law Review, Issue 1, pp. 291–298 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011013 |
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'Survey of Literature', Issue 1, pp. 299–316 |
info'Survey of Literature' (2011) 48 Common Market Law Review, Issue 1, pp. 299–316 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011014 |
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ISSUE 2 | |
'Editorial comments: Enhanced cooperation: A Union à taille réduite or à porte tournante?', Issue 2, pp. 317–327 |
info'Editorial comments: Enhanced cooperation: A Union à taille réduite or à porte tournante?' (2011) 48 Common Market Law Review, Issue 2, pp. 317–327 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011015 |
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'In legal limbo: Post-legislative guidance as a challenge for European administrative law', Joanne Scott, Issue 2, pp. 329–355 |
infoJoanne Scott, 'In legal limbo: Post-legislative guidance as a challenge for European administrative law' (2011) 48 Common Market Law Review, Issue 2, pp. 329–355 | | Post-legislative guidance is a regular feature of European Union law. It serves to elaborate upon the meaning and practical implications of European framework norms. This paper presents a case study on post-legislative guidance adopted in the area of climate change and operating at the interface between European and international law. It examines whether and when post-legislative guidance of this kind may be regarded as susceptible to European-level judicial review. It argues that although the European courts privilege substance over form in deciding which measures may be challenged, post-legislative guidance will frequently escape the scrutiny of these courts. The paper argues that the European courts' case law is premised upon a series of distinctions that operate to obscure the nature and impact of guidance as a governance form and that the European courts should create enhanced opportunities for judicial review. The paper considers what, concretely, this argument might mean for the development of European administrative law. While this paper focuses upon post-legislative guidance in the area of environmental law, the administrative law analysis presented is relevant also beyond this specific substantive sphere. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011016 |
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'Precautionary regulation of chemical risk: How REACH confronts the regulatory challenges of scale, uncertainty, complexity and innovation', Floor Fleurke, Han Somsen, Issue 2, pp. 357–393 |
infoFloor Fleurke, Han Somsen, 'Precautionary regulation of chemical risk: How REACH confronts the regulatory challenges of scale, uncertainty, complexity and innovation' (2011) 48 Common Market Law Review, Issue 2, pp. 357–393 | | In this article, we provide an in-depth analysis of the Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). Measured by the economic importance of the European chemicals industry and the environmental and health risks associated with it, the Regulation probably represents the most important piece of EU environmental regulation to date. We argue that the precautionary approach embodied in REACH has triggered a radical departure from past regulatory efforts that failed effectively to engage with contemporary regulatory challenges of scale, uncertainty, complexity and innovation. In effect, REACH is shaping a promising EU regime of responsive co-regulation that is without precedent in the forty-year history of EU environmental law. We believe that the success of this regime will not only determine the effectiveness of EU chemicals regulation, but more generally will come to determine the way in which EU regulation is likely to respond to a host of new technologies that shape our technological modernity. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011017 |
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'The ECJ and ultra vires action: A conceptual analysis', Paul Craig, Issue 2, pp. 395–437 |
infoPaul Craig, 'The ECJ and ultra vires action: A conceptual analysis' (2011) 48 Common Market Law Review, Issue 2, pp. 395–437 | | There has been debate as to whether the EU remains within the ambit of the competence assigned to it, and this concern has been voiced in relation to both EU legislative and judicial action. The Kompetenz-Kompetenz discourse is indeed premised on the fact that the boundary line as to what is intra or ultra vires the EU can be contestable, thereby rendering the issue of who has the last word all the more important. This article begins by specifying in greater detail the ways in which EU legislative or judicial action might be felt to transgress the limits of its assigned power. The analysis then shifts to the demands of coherence when assessing such claims, which is relevant albeit in different ways for the EU courts, academic commentators and national courts. This is followed by examination of some controversial areas, where it is felt that the EU may have strayed beyond its assigned power. The final section of the article examines some of the new challenges posed by the Lisbon Treaty. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011018 |
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'French supreme courts and European Union law: Between historical compromise and accepted loyalty', Rostane Mehdi, Issue 2, pp. 439–473 |
infoRostane Mehdi, 'French supreme courts and European Union law: Between historical compromise and accepted loyalty' (2011) 48 Common Market Law Review, Issue 2, pp. 439–473 | | Over the past few months, the relations between French supreme courts and EU law seem to have entered an era of reassuring transparency and clarity. This contribution will mainly focus on two rulings rendered by the French supreme courts ("Conseil d'Etat" and "Cour de cassation"), each dealing with an aspect of the relations between national and EU law. The Perreux ruling rendered by the Conseil d'Etat put an end to one of the oldest disputes between itself and the European Court of Justice: the obstinate refusal, since 1978, to recognize the direct effect of directives. By its Melki ruling, the Cour de Cassation made a reference for a preliminary ruling to the ECJ regarding, inter alia, the compatibility of the new French "priority preliminary ruling on the issue of constitutionality" (PPRC) mechanism with EU law. The article tries to show how, in the light of a real rule of reason, the national courts and the ECJ managed to specify the terms of a relationship structured around an unyielding necessity: the protection of fundamental rights. This virtuous dialogue is itself structured by procedural systems which contribute to strengthen decisively the coherence of the European legal order. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011019 |
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'A legal-institutional perspective on the European External Action Service', Bart Van Vooren, Issue 2, pp. 475–502 |
infoBart Van Vooren, 'A legal-institutional perspective on the European External Action Service' (2011) 48 Common Market Law Review, Issue 2, pp. 475–502 | | This article provides a legal perspective on the new European External Action Service (EEAS), and positions this new body in the reshuffled institutional balance of EU external relations. To that end, the paper examines the EEAS's legal nature as compared to that of Council, Commission, their support services and EU agencies, and seeks to define the EEAS's sui generis status in the EU institutional set-up. Some relevant questions are: What are the implications of its absence of legal personality, what does its "functional autonomy" from the Council and Commission imply, what are its formal powers - if any, and could the EEAS be drawn into proceedings before the Court of Justice? In answering those questions, this article then examines to what extent the legal-institutional choices on the structure of the EU External Action Service reflects the age-old tension entrenched in EU external relations law: the EU's nature as an internally diverse entity, which seeks to present a coherent Union voice to the world. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011020 |
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'Half full and half empty glass: The application of EU law in Poland (2004–2010)', Adam Łazowski, Issue 2, pp. 503–553 |
infoAdam Łazowski, 'Half full and half empty glass: The application of EU law in Poland (2004–2010)' (2011) 48 Common Market Law Review, Issue 2, pp. 503–553 | | Poland joined the European Union on 1 May 2004 and the first wave of EU-related litigation reached the Polish courts soon after. The question that this article tries to answer is whether Polish judges are willing and able to serve as EU judges and give EU law effect. The emerging picture is mixed. On the one hand, there is a growing volume of court decisions calling for praise, on the other hand some decisions are not exactly the finest hour of the Polish judiciary. The article starts with an overview of EU-related judgments of the Polish Constitutional Tribunal. It then turns to the application of fundamental tenets of EU law by other Polish courts. This is followed by a discussion of issues raised under the preliminary ruling procedure and an overview of selected references submitted by Polish courts, including problems of translation, and question of temporal scope of EU law. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011021 |
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'Case C-370/07, Commission v. Council, Judgment of the European Court of Justice (Second Chamber) of 1 October 2009', Joni Heliskoski, Issue 2, pp. 555–567 |
infoJoni Heliskoski, 'Case C-370/07, Commission v. Council, Judgment of the European Court of Justice (Second Chamber) of 1 October 2009' (2011) 48 Common Market Law Review, Issue 2, pp. 555–567 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011022 |
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'Case C-406/08, Uniplex (UK) Ltd v. NHS Business Services Authority, Judgment of the European Court of Justice (Third Chamber) of 28 January 2010; Case C-456/08, Commission v. Ireland, Judgment of the European Court of Justice (Third Chamber) of 28 January 2010', Gordon Anthony, Issue 2, pp. 569–579 |
infoGordon Anthony, 'Case C-406/08, Uniplex (UK) Ltd v. NHS Business Services Authority, Judgment of the European Court of Justice (Third Chamber) of 28 January 2010; Case C-456/08, Commission v. Ireland, Judgment of the European Court of Justice (Third Chamber) of 28 January 2010' (2011) 48 Common Market Law Review, Issue 2, pp. 569–579 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011023 |
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'Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission Judgment of the European Court of Justice (Grand Chamber) of 14 September 2010', Giacomo Di Federico, Issue 2, pp. 581–602 |
infoGiacomo Di Federico, 'Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission Judgment of the European Court of Justice (Grand Chamber) of 14 September 2010' (2011) 48 Common Market Law Review, Issue 2, pp. 581–602 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011024 |
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'Case No. A 268/04, The Labour Court, Sweden (Arbetsdomstolen) Judgment No. 89/09 of 2 December 2009, Laval un Partneri Ltd. v. Svenska Bygggnadsarbetareförbundet et al.', Ulf Bernitz, Norbert Reich, Issue 2, pp. 603–623 |
infoUlf Bernitz, Norbert Reich, 'Case No. A 268/04, The Labour Court, Sweden (Arbetsdomstolen) Judgment No. 89/09 of 2 December 2009, Laval un Partneri Ltd. v. Svenska Bygggnadsarbetareförbundet et al.' (2011) 48 Common Market Law Review, Issue 2, pp. 603–623 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011025 |
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'Book reviews', Issue 2, pp. 625–650 |
info'Book reviews' (2011) 48 Common Market Law Review, Issue 2, pp. 625–650 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011026 |
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ISSUE 3 | |
'Editors and Publishers', Issue 3, pp. 651–651 |
info'Editors and Publishers' (2011) 48 Common Market Law Review, Issue 3, pp. 651–651 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011027 |
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'Editorial comments: Union competences in the field of contract law: Some questions – no answers', Issue 3, pp. 653–659 |
info'Editorial comments: Union competences in the field of contract law: Some questions – no answers' (2011) 48 Common Market Law Review, Issue 3, pp. 653–659 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011028 |
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'Mission accomplished? EU Justice and Home Affairs law after the Treaty of Lisbon', S. Peers, Issue 3, pp. 661–693 |
infoS. Peers, 'Mission accomplished? EU Justice and Home Affairs law after the Treaty of Lisbon' (2011) 48 Common Market Law Review, Issue 3, pp. 661–693 | | The legal framework regarding EU Justice and Home Affairs Law was changed fundamentally by the Treaty of Lisbon, so that the usual rules on decision-making, jurisdiction of the Court of Justice, legal instruments and legal effect are now largely applied to this area of law. The various issues falling within the scope of JHA law are now set out in Title V of Part Three of the Treaty on the Functioning of the European Union, which is divided into five chapters, beginning with general provisions, followed by chapters on immigration and asylum, civil law, criminal law and policing law. This paper examines the application of the new rules in practice, in particular the impact of extending QMV; the extended legislative powers of the European Parliament; the role of the Commission as compared to the Member States; and the role of national parliaments. It concludes that this area of EU law is now fully part of the mainstream, with the exception of the special opt-outs for three Member States. However, it now follows that some of the general problems of EU law apply to JHA legislation, and there are emergent problems ensuring that JHA legislation is applied in practice by Member States, in particular from the perspective of the ECHR. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011029 |
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'The evolution of the action for damages against the European Union and its place in the system of judicial protection', Kathleen Gutman, Issue 3, pp. 695–750 |
infoKathleen Gutman, 'The evolution of the action for damages against the European Union and its place in the system of judicial protection' (2011) 48 Common Market Law Review, Issue 3, pp. 695–750 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011030 |
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'Individual, institutional and collective vigilance in protecting fundamental rights in the EU: Lessons from the Roma', M. Dawson, E. Muir, Issue 3, pp. 751–775 |
infoM. Dawson, E. Muir, 'Individual, institutional and collective vigilance in protecting fundamental rights in the EU: Lessons from the Roma' (2011) 48 Common Market Law Review, Issue 3, pp. 751–775 | | In the summer of 2010, French authorities organized the systematic dismantling of illegal Roma settlements. This resulted in the departure of a large number of Roma-EU citizens from France, as well as a significant dispute between France and the European Commission. While the dispute raises a number of issues of substantive EU law, it also illustrates some important strengths and weaknesses in the system of fundamental rights protection in EU law. This article takes these events as a test case to illustrate that tackling complex problems of human rights protection in the EU requires a hybrid approach in which individual and institutional enforcement mechanisms are complemented by a third level of collective vigilance. While ever since Van Gend & Loos the EU has built a comprehensive system of individual and institutional remedies for the enforcement of EU law, social and political factors may limit their usefulness for vulnerable minorities. The vigilance of collective actors such as networks, NGOs, trade unions and agencies may offer a useful additional layer of protection where they are well-integrated within the classic system of remedies for fundamental rights protection in the EU. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011031 |
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'Age discrimination before the ECJ – conceptual and theoretical issues', D. Schiek, Issue 3, pp. 777–799 |
infoD. Schiek, 'Age discrimination before the ECJ – conceptual and theoretical issues' (2011) 48 Common Market Law Review, Issue 3, pp. 777–799 | | Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011032 |
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'Key EU principles to combat transnational organized crime', T. Obokata, Issue 3, pp. 801–828 |
infoT. Obokata, 'Key EU principles to combat transnational organized crime' (2011) 48 Common Market Law Review, Issue 3, pp. 801–828 | | The purpose of this article to critically analyse the core EU principles applicable to transnational organized crime: approximation of national laws and procedures, mutual recognition of judicial decisions and the principle of availability. These principles have been instrumental in closing various gaps created by divergence of criminal laws and justice systems among Member States and in promoting a common EU approach to the problem. Member States have also become more willing to implement measures such as framework decisions at the national level. These principles are explicitly or implicitly mentioned under the TEU and TFEU and therefore their legitimacy has been recognized under the current European legal framework. Nevertheless, it will be shown that a variety of problems, such as State sovereignty, a lack of due regard for protection of human rights, enlargement, and other practical difficulties are simultaneously affecting the ability of the EU and Member States to prevent and suppress the practice effectively. It is further argued that a criminal justice response to transnational organized crime on its own is not sufficient, and that the EU and Member States must address wider issues such as the supply of, and demand for, illicit goods and services. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011033 |
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'Environmental integration and multi-faceted international dimensions of EU law: Unpacking the EU’s 2009 climate and energy package', Kati Kulovesi, Elisa Morgera, Miquel Muñoz, Issue 3, pp. 829–891 |
infoKati Kulovesi, Elisa Morgera, Miquel Muñoz, 'Environmental integration and multi-faceted international dimensions of EU law: Unpacking the EU’s 2009 climate and energy package' (2011) 48 Common Market Law Review, Issue 3, pp. 829–891 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011034 |
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'Case C-439/08, Vlaamse federatie van verenigingen van Brood- en Banketbakkers, IJsbereiders en Chocoladebewerkers (VEBIC), Judgment of the European Court of Justice (Grand Chamber) of 7 December 2010', Michael J. Frese, Issue 3, pp. 893–906 |
infoMichael J. Frese, 'Case C-439/08, Vlaamse federatie van verenigingen van Brood- en Banketbakkers, IJsbereiders en Chocoladebewerkers (VEBIC), Judgment of the European Court of Justice (Grand Chamber) of 7 December 2010' (2011) 48 Common Market Law Review, Issue 3, pp. 893–906 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011035 |
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'Case C-440/07 P, Schneider Electric SA v. Commission, Judgment of the European Court of Justice (Grand Chamber) of 16 July 2009', Bernd Grzeszick, Issue 3, pp. 907–923 |
infoBernd Grzeszick, 'Case C-440/07 P, Schneider Electric SA v. Commission, Judgment of the European Court of Justice (Grand Chamber) of 16 July 2009' (2011) 48 Common Market Law Review, Issue 3, pp. 907–923 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011036 |
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'Case C-357/09 PPU, proceedings concerning Said Shamilovich Kadzoev (Huchbarov), Judgment of the European Court of Justice (Grand Chamber) of 30 November 2009', G. Cornelisse, Issue 3, pp. 925–945 |
infoG. Cornelisse, 'Case C-357/09 PPU, proceedings concerning Said Shamilovich Kadzoev (Huchbarov), Judgment of the European Court of Justice (Grand Chamber) of 30 November 2009' (2011) 48 Common Market Law Review, Issue 3, pp. 925–945 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011037 |
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'Case C-111/09, Ceská podnikatelská pojištovna as, Vienna Insurance Group v. Michal Bilas, Judgment of the European Court of Justice (Fourth Chamber) of 20 May 2010', Ugljesa Grusic, Issue 3, pp. 947–955 |
infoUgljesa Grusic, 'Case C-111/09, Ceská podnikatelská pojištovna as, Vienna Insurance Group v. Michal Bilas, Judgment of the European Court of Justice (Fourth Chamber) of 20 May 2010' (2011) 48 Common Market Law Review, Issue 3, pp. 947–955 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011038 |
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'Book reviews', Issue 3, pp. 957–985 |
info'Book reviews' (2011) 48 Common Market Law Review, Issue 3, pp. 957–985 | | Copyright © 2011 Kluwer Law International
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ID: COLA2011039 |
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ISSUE 4 | |
'Editorial comments: Delivering justice: Small and bigger steps at the ECJ', Issue 4, pp. 987–993 |
info'Editorial comments: Delivering justice: Small and bigger steps at the ECJ' (2011) 48 Common Market Law Review, Issue 4, pp. 987–993 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011040 |
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'The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms', Issue 4, pp. 995–1023 |
info'The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms' (2011) 48 Common Market Law Review, Issue 4, pp. 995–1023 | | After more than fifty years of debate on the relationship between the EC/EU and the ECHR, the Lisbon Treaty introduced a provision requiring, without any doubt, the Union to accede to the Convention: Article 6(2) TEU. After a brief historical review of the developments leading up to this step, the article analyses critically the present state of negotiations, on the basis of the draft texts produced by the CDDH informal working group on the accession of the European Union to the European Convention on Human Rights (CDDH-UE) with the European Commission. The most important topics concern the scope of accession, the extent of control over EU action and remedies. The question what status is to be given to the EU within the ECHR system is also addressed. The crucial issues of the division of responsibility between the Union and its Member States - including the proposed co-respondent system - and the possible means of involving the European Court of Justice in relation to alleged infringements of human rights are examined. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011041 |
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'Walking on a tightrope: The draft ECHR accession agreement and the autonomy of the EU legal order', T. Lock, Issue 4, pp. 1025–1054 |
infoT. Lock, 'Walking on a tightrope: The draft ECHR accession agreement and the autonomy of the EU legal order' (2011) 48 Common Market Law Review, Issue 4, pp. 1025–1054 | | This contribution measures the first draft agreement on the accession of the EU to the ECHR by the strict requirements of the autonomy of the EU legal order. It concludes that the review of EU action by the ECtHR would be compatible with the autonomy. However, the procedure before the ECtHR provided for in the draft agreement raises serious problems. Both the co-respondent mechanism and the prior involvement of the ECJ are well-intended suggested solutions, but may not pass the hurdles erected by the ECJ in its case law on the autonomy. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011042 |
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'EU agencies between Meroni and Romano or the devil and the deep blue sea', Merijn Chamon, Issue 4, pp. 1055–1075 |
infoMerijn Chamon, 'EU agencies between Meroni and Romano or the devil and the deep blue sea' (2011) 48 Common Market Law Review, Issue 4, pp. 1055–1075 | | A contentious issue regarding the institutional phenomenon of agencification of the Union administration is the question whether and to which extent executive powers may be conferred on EU agencies. This question has arisen because the Treaties neither foresee nor exclude the possibility for the Union legislature to establish other bodies through secondary law. So far this question has also remained unresolved because the Court of Justice has not yet ruled on this specific issue. In the case law of the Court there are however rulings to be found, notably the Meroni and Romano cases, in which the conferral of powers on bodies more or less similar to EU agencies was reviewed. Unsurprisingly these rulings, and especially the Meroni ruling, have therefore attracted the attention of legal scholars in their attempts to frame the process of agencification in the EU. Although the Meroni ruling is much more cited and analysed in the legal debate on agencies than the Romano judgment, it is argued in this contribution that the latter is far more relevant for current day agencies. By applying the reasoning in Romano to the EU agencies it is revealed, even more so than by applying the Meroni doctrine, that the ongoing agencification rests on very shaky legal grounds. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011043 |
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'Towards a revision of the consumer acquis', Horst Eidenmüller, Florian Faust, Nils Jansen, Gerhard Wagner, Reinhard Zimmermann, Issue 4, pp. 1077–1123 |
infoHorst Eidenmüller, Florian Faust, Nils Jansen, Gerhard Wagner, Reinhard Zimmermann, 'Towards a revision of the consumer acquis' (2011) 48 Common Market Law Review, Issue 4, pp. 1077–1123 | | When the European Commission initiated the Common Frame of Reference process, it aimed, in particular, at a revision of the acquis communautaire in the field of consumer contract law. However, such revision has not, to date, been undertaken. The Draft Common Frame of Reference (DCFR) is marked by a largely uncritical attitude vis-à-vis the acquis. The same will be true, it must be feared, for the "optional instrument" to be developed by an "expert group" on that basis by mid-2011. The Proposal for a "horizontal" Directive on Consumer Rights submitted by the Commission in October 2008 did not benefit from a critical revision of the acquis either. The authors of the present paper have attempted to remedy this deficiency by an investigation of the key issues involved: the proper scope and effectiveness of mandatory law, the policing of not individually negotiated unfair contract terms, rights of withdrawal, the unwinding of consumer contracts following the exercise of a right of withdrawal, and information duties. This paper presents in English the main conclusions of a more comprehensive German study, and in the form of 52 propositions, grouped by subject matter and elucidated, in most cases, by brief comments. We thus hope to initiate a discussion on the reform of European consumer contract law that goes beyond a harmonizing generalization of individual rules, which emphasizes intellectual coherence as well as consistency of concepts, policies, and evaluations. A particular focus is on rational justifications for consumer contract rules and on how such rules should be formulated in order to serve the economic purposes they are intended to serve. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011044 |
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'Effective collective redress in antitrust and consumer protection matters: A panacea or a chimera?', Dimitrios-Panagiotis Tzakas, Issue 4, pp. 1125–1174 |
infoDimitrios-Panagiotis Tzakas, 'Effective collective redress in antitrust and consumer protection matters: A panacea or a chimera?' (2011) 48 Common Market Law Review, Issue 4, pp. 1125–1174 | | Although collective redress constitutes a significant feature of modern judicial systems, EU law seems reluctant as to the introduction of such mechanisms. On the one hand, the role of collective rights of action remains indispensable in order to promote procedural efficiency and overcome rational apathy, especially in the fields of antitrust and consumer protection law where illegal business practices may cause scattered and low-valued damages to a multitude of harmed individuals. On the other hand, the potential for unmeritorious claims and abusive actions should not be underestimated, so that specific safeguards are put in place in order to avoid the emergence of a litigation industry in the form of entrepreneurial attorneys. In light of the recent public consultation launched by the EU Commission, the present paper addresses the challenges and makes propositions for the future collective redress legislation. For that reason, an in-depth analysis as to the substantive, jurisdictional and conflict-of-laws aspects of both representative and collective actions has to be undertaken. In each case, specific consideration will be given to the peculiarities of the Member States procedural traditions and the policy objectives underpinning EU competition and consumer protection law. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011045 |
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'“Money for nothing”: The case law of the EU Court of Justice on the regulation of gambling', Stefaan Van den Bogaert, Armin Cuyvers, Issue 4, pp. 1175–1213 |
infoStefaan Van den Bogaert, Armin Cuyvers, '“Money for nothing”: The case law of the EU Court of Justice on the regulation of gambling' (2011) 48 Common Market Law Review, Issue 4, pp. 1175–1213 | | In a series of recent judgments, the Court of Justice has developed its approach to games of chance and online gambling. It has made it clear it will not use the EU free movement of services provisions to liberalize the internal market for games of chance. Member States are given a remarkable discretion to regulate gambling services. To this end, the Court applies its standard test for restrictions very flexibly, including even an interesting moral strand, on the basis of overriding reasons in the general interest and objectives of combating fraud and gambling addiction. The remaining scrutiny is essentially left to the national courts. As far as the award of licences is concerned, the requirements of transparency are applied more strictly, which may have a significant impact on market access. This contribution provides a thorough analysis of the EU framework now in place for games of chance. In addition, it proposes some general guidelines for the needed political, legislative activity at the EU level. Such activity could enhance both revenue and Member State control over gambling services, whilst allowing cooperation between them to achieve their individual objectives. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011046 |
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'Just a little sunshine in the rain: The 2010 case law of the European Court of Justice on access to documents', Päivi Leino, Issue 4, pp. 1215–1252 |
infoPäivi Leino, 'Just a little sunshine in the rain: The 2010 case law of the European Court of Justice on access to documents' (2011) 48 Common Market Law Review, Issue 4, pp. 1215–1252 | | In the summer of 2010, the Grand Chamber of the European Court of Justice handed down three significant rulings concerning the interpretation of some of the key principles of Regulation 1049/2001 on public access to documents held by the EU institutions- Case C-139/07 P, Commission v. Technische Glaswerke Ilmenau , C-28/08 P, Commission v. Bavarian Lager, Joined Cases C-514/07 P, 528/07 P & 532/07 P, Sweden v. API and Commission . The current analysis examines the state of openness in the EU after the three rulings, and places it in the context of the ongoing revision of the Regulation. In establishing that the Commission was right in arguing for "general presumptions" for secrecy, which exempt the institutions from examining the contents of documents individually in order to evaluate whether granting access to their contents cause harm to protected interests, and agreeing to a unduly wide interpretation of "privacy" the Court gave its blessing to a significant part of the Commission agenda to limit public access in the Union. The interpretation adopted by the Court gives serious reason for the legislature to amend the Regulation so as to guarantee that the Union is run as openly as possible. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011047 |
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'Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of Justice (Grand Chamber) of 8 March 2011', Kay Hailbronner, Daniel Thym, Issue 4, pp. 1253–1270 |
infoKay Hailbronner, Daniel Thym, 'Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), Judgment of the Court of Justice (Grand Chamber) of 8 March 2011' (2011) 48 Common Market Law Review, Issue 4, pp. 1253–1270 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011048 |
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'Case C-166/07, European Parliament v. Council of the European Union, Judgment of the Court of Justice (Grand Chamber) of 3 September 2009', Tim Corthaut, Issue 4, pp. 1271–1296 |
infoTim Corthaut, 'Case C-166/07, European Parliament v. Council of the European Union, Judgment of the Court of Justice (Grand Chamber) of 3 September 2009' (2011) 48 Common Market Law Review, Issue 4, pp. 1271–1296 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011049 |
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'Case C-512/08, Commission v. France, Judgment of the European Court of Justice (Grand Chamber) of 5 October 2010; Case C-173/09, Georgi Ivanov Elchinov v. Natsionalna zdravnoosiguritelna kasa, Judgment of the Court of Justice (Grand Chamber) of 5 October 2010', Anne Pieter van der Mei, Issue 4, pp. 1297–1311 |
infoAnne Pieter van der Mei, 'Case C-512/08, Commission v. France, Judgment of the European Court of Justice (Grand Chamber) of 5 October 2010; Case C-173/09, Georgi Ivanov Elchinov v. Natsionalna zdravnoosiguritelna kasa, Judgment of the Court of Justice (Grand Chamber) of 5 October 2010' (2011) 48 Common Market Law Review, Issue 4, pp. 1297–1311 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011050 |
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'Case C-540/08, Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v. Österreich-Zeitungsverlag GmbH, Judgment of the Court of Justice (Grand Chamber) of 9 November 2010', Asterios Pliakos, Georgios Anagnostaras, Issue 4, pp. 1313–1327 |
infoAsterios Pliakos, Georgios Anagnostaras, 'Case C-540/08, Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v. Österreich-Zeitungsverlag GmbH, Judgment of the Court of Justice (Grand Chamber) of 9 November 2010' (2011) 48 Common Market Law Review, Issue 4, pp. 1313–1327 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011051 |
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'Case C-79/09, Gowan Comércio Internacional e Serviços Lda v. Ministero della Salute, Judgment of the Court of Justice (Second Chamber) of 22 December 2010', Alberto Alemanno, Issue 4, pp. 1329–1348 |
infoAlberto Alemanno, 'Case C-79/09, Gowan Comércio Internacional e Serviços Lda v. Ministero della Salute, Judgment of the Court of Justice (Second Chamber) of 22 December 2010' (2011) 48 Common Market Law Review, Issue 4, pp. 1329–1348 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011052 |
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'Book reviews', Issue 4, pp. 1349–1384 |
info'Book reviews' (2011) 48 Common Market Law Review, Issue 4, pp. 1349–1384 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011053 |
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'Survey of Literature', Issue 4, pp. 1385–1401 |
info'Survey of Literature' (2011) 48 Common Market Law Review, Issue 4, pp. 1385–1401 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011054 |
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ISSUE 5 | |
'Editors and publishers', Issue 5, pp. 1403–1403 |
info'Editors and publishers' (2011) 48 Common Market Law Review, Issue 5, pp. 1403–1403 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011055 |
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'Editorial comments, Towards a more judicial approach? EU antitrust fines under the scrutiny of fundamental rights', Issue 5, pp. 1405–1416 |
info'Editorial comments, Towards a more judicial approach? EU antitrust fines under the scrutiny of fundamental rights' (2011) 48 Common Market Law Review, Issue 5, pp. 1405–1416 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011056 |
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'Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty', Armin von Bogdandy , Stephan Schill, Issue 5, pp. 1417–1453 |
infoArmin von Bogdandy , Stephan Schill, 'Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty' (2011) 48 Common Market Law Review, Issue 5, pp. 1417–1453 | | The present article examines the function of the revised identity clause in Article 4(2) TEU. By focusing on the fundamental political and constitutional structures of Member States, Article 4(2) TEU provides a perspective to overcome the idea of absolute primacy of EU law and the underlying assumption of a hierarchical model to understand the relationship between EU law and domestic constitutional law. The revised identity clause in Article 4(2) TEU not only demands respect for national constitutional identity, a notion determined through a close interplay of domestic constitutional law and EU law, but can be understood as permitting domestic constitutional courts to invoke, under certain limited circumstances, constitutional limits to the primacy of EU law. At the same time, Article 4(2) TEU, in tandem with the principle of sincere cooperation contained in Article 4(3) TEU, embeds these constitutional limits into an institutional and procedural framework in which domestic constitutional courts and the Court of Justice interact closely as part of a composite system of constitutional adjudication. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011057 |
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'Online service providers and liability: A plea for a balanced approach', Patrick Van Eecke, Issue 5, pp. 1455–1502 |
infoPatrick Van Eecke, 'Online service providers and liability: A plea for a balanced approach' (2011) 48 Common Market Law Review, Issue 5, pp. 1455–1502 | | Internet access providers, online platforms and other intermediaries benefit from a protection against liability claims caused by end-users' illegal or harmful information. This liability limitation is enshrined in the 2000 Directive on Electronic Commerce, a directive considered crucial for a proper functioning of the internal market, the uptake of the information society and the protection of freedom of speech. Throughout the years, the liability protection for online intermediaries seems, however, to have been gradually carved out by case law, particularly on the Member State level. In recent cases, such as C- 236/08, Google France, and C-324/09, L'Oréal, the European Court of Justice has also interpreted relevant EU legislation. Online intermediaries are increasingly forced to monitor the activities of their users if they want to remain shielded from liability. Paradoxically, obliging online intermediaries to monitor the information transmitted or stored by users is forbidden by the same Directive on Electronic Commerce. This article proposes a balanced approach in which the intermediary protection regime can be safeguarded, whilst still protecting the rights of third parties whose rights may be infringed on the internet. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011058 |
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'Exploring the boundaries of positive action under EU law: A search for conceptual clarity', Mark Bell, Lisa Waddington, Issue 5, pp. 1503–1526 |
infoMark Bell, Lisa Waddington, 'Exploring the boundaries of positive action under EU law: A search for conceptual clarity' (2011) 48 Common Market Law Review, Issue 5, pp. 1503–1526 | | Keywords:
positive action, equality, discrimination, reasonable accommodation, mainstreaming Positive action is a central element of EU anti-discrimination legislation. It allows measures to be taken to further the realization of full equality in practice by redressing past or present disadvantages experienced by groups such as women, ethnic minorities, etc. With the expansion of EU anti-discrimination law, additional methods of promoting equality have been introduced, such as reasonable accommodation duties, mainstreaming and equality data collection. This has given rise to some terminological and conceptual confusion as to the distinction between these measures and positive action, including within court judgments. This article argues that positive action can be separated from other techniques for promoting equality and that maintaining this distinction is important. In particular, there are a specific set of requirements for positive action measures to be lawful, including respect for the principle of proportionality. Applying these requirements in an over-inclusive manner could have the effect of imposing unnecessary restrictions, as well as generating confusion for organizations and individuals with regard to what positive action entails. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011059 |
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'Just a little bit of “mixity”? The EU’s role in the field of international investment protection law', Jan Asmus Bischoff, Issue 5, pp. 1527–1569 |
infoJan Asmus Bischoff, 'Just a little bit of “mixity”? The EU’s role in the field of international investment protection law' (2011) 48 Common Market Law Review, Issue 5, pp. 1527–1569 | | With the entry into force of the Lisbon Treaty, the Common Commercial Policy (CCP) has been extended to foreign direct investment (FDI). However, the scope of these (exclusive) competences under the CCP is limited and thus does not pertain to all issues governed by contemporary bilateral investment treaties (BITs). Rather, the competences for such BITs are mixed. Therefore, future agreements will have to be concluded by the EU and the its Member States together unless the EU is prepared to exclude the protection of certain investments from its agenda. But mixed agreements on investment protection cause complications concerning their conclusion and implementation. Until a satisfying EU investment regime is set up, investments by nationals of the EU Member States will have to be protected by the Member States' BITs. The Member States of the EU have concluded a large number of bilateral and also multilateral investment agreements governing the protection of investments made. Nevertheless, the existing Member States' BITs are affected by the transfer of exclusive competences for FDI to the EU. Generally, the Member States will have to terminate these agreements. To avoid such severe consequences, the European Commission proposed a Regulation establishing a transitional regime that allows the Member States to maintain their existing BITs concluded with third countries or even to conclude new BITs. Such a transitional regime is essential for the protection of investments by EU nationals. However, the Regulation Proposal adopted by the Commission is badly drafted and can only be considered a first step towards such an instrument. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011060 |
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'Just what is the scope of the essential facilities doctrine in the energy sector?: Third party access-friendly interpretation in the EU v. contractual freedom in the US', Kim Talus, Issue 5, pp. 1571–1597 |
infoKim Talus, 'Just what is the scope of the essential facilities doctrine in the energy sector?: Third party access-friendly interpretation in the EU v. contractual freedom in the US' (2011) 48 Common Market Law Review, Issue 5, pp. 1571–1597 | | The application of EU competition law in the energy sector has intensified over the last few years. Article 102 TFEU and the essential facilities doctrine has been employed to change the way in which the European natural gas markets operate. Using a merits based approach to the essential facilities doctrine and transportation capacity contracts, the Commission is attempting to create a market structure capable of supporting competition. While the effect of this body of administrative cases is increasing opportunities for competition and as such can be seen as positive, the measures forced on the back of the essential facilities doctrine raise serious questions on its applicability and scope of actions it allows. A comparison to the case law in the United States shows a stark difference in the approach on the other side of the Atlantic. The Courts in the United States have been less willing to substitute the market-based mechanism with their own views about the most efficient market structure. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011061 |
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'Case law of the European Court of Justice on sex discrimination 2006-2011', Kristina Koldinská, Issue 5, pp. 1599–1638 |
infoKristina Koldinská, 'Case law of the European Court of Justice on sex discrimination 2006-2011' (2011) 48 Common Market Law Review, Issue 5, pp. 1599–1638 | | This article aims to point out some important cases recently presented before the ECJ which show that the area of gender equality is still a very dynamic and vital field in EU law, and that thanks to its long-lasting tradition it provides a very important source for legal argumentation and reflection. The article covers the period from 2006 to May 2011. It discusses firstly the enforcement of EU equality law connected with the issue of horizontal direct effect of the directives reflected in the sex equality case law, which might be further strengthened by the entry into force of the Charter of Fundamental Rights in EU. Special attention is paid to the discourse on retirement pension ages, with an analysis of the Kleist case. Further sections reflect some typical issues, which always return to the ECJ, such as equal pay, pregnancy and parental leave, since in the period covered by this contribution so many cases on pregnancy appeared. The topics which were new before the ECJ, like the multidimensional discrimination are also taken into consideration. Last but not least, attention is paid to the issue of gender equality in access to and supply of goods and services. In this connection, the Lindorfer and Test-Achats cases are discussed in more detail. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011062 |
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'Case C-246/07, Commission v. Sweden (PFOS), Judgment of the Court of Justice (Grand Chamber) of 20 April 2010', Marise Cremona, Issue 5, pp. 1639–1665 |
infoMarise Cremona, 'Case C-246/07, Commission v. Sweden (PFOS), Judgment of the Court of Justice (Grand Chamber) of 20 April 2010' (2011) 48 Common Market Law Review, Issue 5, pp. 1639–1665 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011063 |
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'Case C-386/08, Brita GmbH v. Hauptzollamt Hamburg-Hafen, Judgment of the Court of Justice (Fourth Chamber) of 25 February 2010', Rass Holdgaard, Ole Spiermann, Issue 5, pp. 1667–1685 |
infoRass Holdgaard, Ole Spiermann, 'Case C-386/08, Brita GmbH v. Hauptzollamt Hamburg-Hafen, Judgment of the Court of Justice (Fourth Chamber) of 25 February 2010' (2011) 48 Common Market Law Review, Issue 5, pp. 1667–1685 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011064 |
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'Case C-261/09, Criminal proceedings against Gaetano Mantello, Judgment of the Court of Justice (Grand Chamber) of 16 November 2010', Jannemieke Ouwerkerk, Issue 5, pp. 1687–1701 |
infoJannemieke Ouwerkerk, 'Case C-261/09, Criminal proceedings against Gaetano Mantello, Judgment of the Court of Justice (Grand Chamber) of 16 November 2010' (2011) 48 Common Market Law Review, Issue 5, pp. 1687–1701 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011065 |
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'Case C-285/09, Criminal proceedings against R, in the presence of the Generalbundesanwalt beim Bundesgerichtshof and the Finanzamt Karlsruhe-Durlach, Judgment of the Court of Justice (Grand Chamber) of 7 December 2010', Annekatrien Lenaerts, Issue 5, pp. 1703–1717 |
infoAnnekatrien Lenaerts, 'Case C-285/09, Criminal proceedings against R, in the presence of the Generalbundesanwalt beim Bundesgerichtshof and the Finanzamt Karlsruhe-Durlach, Judgment of the Court of Justice (Grand Chamber) of 7 December 2010' (2011) 48 Common Market Law Review, Issue 5, pp. 1703–1717 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011066 |
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'Joined Cases C-436 & 437/08, Haribo Lakritzen Hans Riegel BetriebsgmbH and Österreichische Salinen AG v. Finanzamt Linz, Judgment of the Court of Justice (Third Chamber) of 10 February 2011', Halvard Haukeland Fredriksen, Gjermund Mathisen, Issue 5, pp. 1719–1736 |
infoHalvard Haukeland Fredriksen, Gjermund Mathisen, 'Joined Cases C-436 & 437/08, Haribo Lakritzen Hans Riegel BetriebsgmbH and Österreichische Salinen AG v. Finanzamt Linz, Judgment of the Court of Justice (Third Chamber) of 10 February 2011' (2011) 48 Common Market Law Review, Issue 5, pp. 1719–1736 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011067 |
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'Book reviews', Issue 5, pp. 1737–1767 |
info'Book reviews' (2011) 48 Common Market Law Review, Issue 5, pp. 1737–1767 | | Copyright © 2011 Kluwer Law International
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ID: COLA2011068 |
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ISSUE 6 | |
'The Greek sovereign debt tragedy: Approaching the final act?', Issue 6, pp. 1769–1776 |
info'The Greek sovereign debt tragedy: Approaching the final act?' (2011) 48 Common Market Law Review, Issue 6, pp. 1769–1776 | | Copyright © 2011 Kluwer Law International
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ID: COLA2011069 |
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'The European debt crisis and European Union law', Matthias Ruffert, Issue 6, pp. 1777–1805 |
infoMatthias Ruffert, 'The European debt crisis and European Union law' (2011) 48 Common Market Law Review, Issue 6, pp. 1777–1805 | | Economic governance in the EU has been undergoing substantial changes since the beginning of the sovereign debt crisis. The re-arrangements are affecting the convergence of European economies, budgetary control and emergency reactions. Some of them are still at proposal stage, such as the "sixpack" proposed by the Commission for a series of legislative measures on convergence and budgetary surveillance, which is still under scrutiny in Parliament and which is accompanied by activity of the European Council (Euro-Plus-Pact, European Semester). Emergency action is being undertaken since May 2010 (Greek package, EFSM, EFSF) and should lead to a newly inserted provision in the TFEU together with a new international financial institution (ESM). From a European constitutional lawyer's view, the soundness of the reforms already at proposal stage, as well as the emergency activity currently undertaken, may be called into question. European constitutionalism is at stake, as core rules of the Treaties are disrespected. Democratic governance is threatened, as most of the new structures are devoid of parliamentary backing. Stability and welfare are jeopardized as the policy of the Union deviates from successful ways of economic governance as enshrined in the Treaties. European legal scholarship must not be reluctant in pointing at such deficiencies and should participate in showing ways out of the crisis. Copyright © 2011 Kluwer Law International
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ID: COLA2011070 |
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'What are we to make of the citizens’ initiative?', Michael Dougan, Issue 6, pp. 1807–1848 |
infoMichael Dougan, 'What are we to make of the citizens’ initiative?' (2011) 48 Common Market Law Review, Issue 6, pp. 1807–1848 | | The citizens' initiative is a novel instrument for direct democratic participation in the functioning of the European Union which was introduced by the Treaty of Lisbon and given effect through the adoption of Regulation 211/2011. This article examines the background, context and content of the Citizens' Initiative, before turning to consider two main sets of legal issues: who precisely a citizens' initiative may claim to represent; and what a citizens' initiative may realistically seek to achieve. It is argued that (on paper at least) the Treaties and Regulation 211/2011 have together created a relatively weak instrument: one which is likely to be activated only by organised civil society; and in any event appears heavily dependent upon mediation through the Union institutions. But whatever its fate as a tool of participatory democracy, the citizens' initiative engages in new and potentially fruitful ways with various broader issues of Union law: for example, the prospects for building a truly borderless Union citizenship; the place of third country nationals within the political dimension to European integration; and the complex task of interpreting and reconciling the Union's core values and objectives. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011071 |
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'Participation and the role of law after Lisbon: A legal view on Article 11 TEU', Joana Mendes, Issue 6, pp. 1849–1877 |
infoJoana Mendes, 'Participation and the role of law after Lisbon: A legal view on Article 11 TEU' (2011) 48 Common Market Law Review, Issue 6, pp. 1849–1877 | | Participation in EU governance has been largely kept outside the realm of law. Article 11 TEU has the potential to change this status quo, despite the fact that, with the exception of the European citizens' initiative, it represents more the recognition of previous institutional practices than an innovation proper. This contribution presents a normative interpretation of Article 11 TEU and analyses the implications of the distinct transformation this Treaty article postulates: the transition from participation based on a logic of participatory governance to participation that concretizes democracy as a "value" or a founding principle of the Union, and that responds to the respective normative yardsticks, such as equality and transparency. This is the main challenge posed by Article 11 TEU. While acknowledging that law is not the only way of giving effect to the prescriptions of this Treaty article, this contribution discusses the role of law in operating the normative shift mentioned. It analyses why different EU institutions may be urged to reconsider the role of law with regard to participation, in view not only of Article 11 TEU - as law may be needed to guarantee the conditions that ensure participation as a source of democratic legitimacy in the EU - but also of other Treaty provisions. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011072 |
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'The European Securities and Markets Authority: Lifting the veil on the allocation of powers', Pierre Schammo, Issue 6, pp. 1879–1913 |
infoPierre Schammo, 'The European Securities and Markets Authority: Lifting the veil on the allocation of powers' (2011) 48 Common Market Law Review, Issue 6, pp. 1879–1913 | | The European Securities and Markets Authority (ESMA) was established in 2011 in the wake of the financial crisis. As one of the European Supervisory Authorities (ESA), it is part of the new European System of Financial Supervision. In order to carry out its tasks, ESMA was allocated an impressive range of powers which it exercises in relation to national competent authorities or market actors, including Credit Rating Agencies. The aim of this article is to examine ESMA's powers and the questions that they raise. As an EU body, ESMA was delegated certain powers. This fact raises some important issues - notably with respect to the Meroni doctrine - which this article investigates. In particular, it argues that EU actors have mostly been tight-lipped over the precise constitutional limitations of a delegation of powers when vesting powers in ESMA. The main message of this article is that the lack of clarity characterizing the current state of affairs is unsatisfactory and should be addressed. PERLIO - Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011073 |
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'The European Union Act 2011: Locks, limits and legality', Paul Craig, Issue 6, pp. 1915–1944 |
infoPaul Craig, 'The European Union Act 2011: Locks, limits and legality' (2011) 48 Common Market Law Review, Issue 6, pp. 1915–1944 | | The European Union Act 2011 imposes a complex set of constraints on the acceptance of EU law within the UK. It stipulates the need for an Act of Parliament and a referendum in a wide range of circumstances - notably Treaty amendment pursuant to the ordinary revision procedure in Article 48(2)-(5) TEU and Treaty reform pursuant to the simplified revision procedure in Article 48(6) TEU - and in addition sets out requirements for statutory approval and other forms of Parliamentary approval in relation to certain EU measures. The 2011 statute raises issues of principle that are relevant for all Member States of the EU. This article explicates the provisions of the European Union Act 2011, and then examines their legal and political implications from the perspective of both UK law and EU law. The article concludes by reflecting more broadly on the implications of the 2011 Act for other forms of constitutional constraint on the acceptance of EU law by the Member States'. Copyright © 2011 Kluwer Law International
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ID: COLA2011074 |
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'The reception of European Union law in Hungary: The Constitutional Court and the Hungarian judiciary', Flora Fazekas, Marton Varju, Issue 6, pp. 1945–1984 |
infoFlora Fazekas, Marton Varju, 'The reception of European Union law in Hungary: The Constitutional Court and the Hungarian judiciary' (2011) 48 Common Market Law Review, Issue 6, pp. 1945–1984 | | The reception of European Union law in Hungary has produced mixed results. The Constitutional Court, entangled in a jurisprudence which focuses primarily on the question whether it has competence under national law to address issues of EU law, has refrained from formulating a comprehensive account of the constitutional impact of membership in the European Union. The constitutional limits of membership remain obscure leaving the parameters of constitutional control following the principles of democracy, the rule of law and national sovereignty unspecified. The approach of the Hungarian judiciary, under the coordination of the Supreme Court, has been more ambitious. The basic tenets of the judicial application of European Union law have been secured in the jurisprudence, and Hungarian courts regard themselves equipped to interpret and apply EU law. There are indications, however, that the jurisprudence incorporated the relevant principles without sufficient care for legal detail and without regard to the qualifications and limitations of those principles in EU law. Instances of material misdirection in EU law also shed certain doubts over the performance of Hungarian courts. Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011075 |
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'Case C-409/06, Winner Wetten GmbH v. Bürgermeisterin der Stadt Bergheim, Judgment of the Court (Grand Chamber) of 8 September 2010', Thomas Beukers, Issue 6, pp. 1985–2004 |
infoThomas Beukers, 'Case C-409/06, Winner Wetten GmbH v. Bürgermeisterin der Stadt Bergheim, Judgment of the Court (Grand Chamber) of 8 September 2010' (2011) 48 Common Market Law Review, Issue 6, pp. 1985–2004 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011076 |
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'Joined Cases C-92 & 93/09, Volker und Markus Schecke GbR and Hartmut Eifert, Judgment of the Court of Justice (Grand Chamber) of 9 November 2010', Michal Bobek, Issue 6, pp. 2005–2022 |
infoMichal Bobek, 'Joined Cases C-92 & 93/09, Volker und Markus Schecke GbR and Hartmut Eifert, Judgment of the Court of Justice (Grand Chamber) of 9 November 2010' (2011) 48 Common Market Law Review, Issue 6, pp. 2005–2022 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011077 |
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'Case C-279/09, DEB v. Germany, Judgment of the European Court of Justice (Second Chamber) of 22 December 2010', Peter Oliver, Issue 6, pp. 2023–2040 |
infoPeter Oliver, 'Case C-279/09, DEB v. Germany, Judgment of the European Court of Justice (Second Chamber) of 22 December 2010' (2011) 48 Common Market Law Review, Issue 6, pp. 2023–2040 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011078 |
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'Case C-236/09, Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011', Christa Tobler, Issue 6, pp. 2041–2060 |
infoChrista Tobler, 'Case C-236/09, Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011' (2011) 48 Common Market Law Review, Issue 6, pp. 2041–2060 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011079 |
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'Case C-97/09, Ingrid Schmelz v. Finanzamt Waldviertel, Judgment of the Court (Grand Chamber) of 26 October 2010; Case C-72/09, Établissements Rimbaud SA v. Directeur general des impôts, Directeur des services fiscaux d ’Aix-en-Provence, Judgment of the Court (Third Chamber) of 28 October 2010', Suzanne Kingston, Issue 6, pp. 2061–2081 |
infoSuzanne Kingston, 'Case C-97/09, Ingrid Schmelz v. Finanzamt Waldviertel, Judgment of the Court (Grand Chamber) of 26 October 2010; Case C-72/09, Établissements Rimbaud SA v. Directeur general des impôts, Directeur des services fiscaux d ’Aix-en-Provence, Judgment of the Court (Third Chamber) of 28 October 2010' (2011) 48 Common Market Law Review, Issue 6, pp. 2061–2081 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011080 |
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'Case C-521/06 P, Athinaïki Techniki v. Commission, Judgment of the Court of Justice (Fourth Chamber) of 17 July 2008, [2008] ECR I-5829; Case C-322/09 P, NDSHT v. Commission, Judgment of the Court of Justice (Third Chamber) of 18 November 2010; Case C-362/09 P, AthinaïkiTechniki v. Commission, Judgment of the Court of Justice (Third Chamber) of 16 December 2010', Edoardo Gambaro, Francesco Mazzocchi, Issue 6, pp. 2083–2105 |
infoEdoardo Gambaro, Francesco Mazzocchi, 'Case C-521/06 P, Athinaïki Techniki v. Commission, Judgment of the Court of Justice (Fourth Chamber) of 17 July 2008, [2008] ECR I-5829; Case C-322/09 P, NDSHT v. Commission, Judgment of the Court of Justice (Third Chamber) of 18 November 2010; Case C-362/09 P, AthinaïkiTechniki v. Commission, Judgment of the Court of Justice (Third Chamber) of 16 December 2010' (2011) 48 Common Market Law Review, Issue 6, pp. 2083–2105 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011081 |
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'Book reviews', Issue 6, pp. 2107–2142 |
info'Book reviews' (2011) 48 Common Market Law Review, Issue 6, pp. 2107–2142 | | Copyright © 2011 Kluwer Law International
All rights reserved ISSN: 0165-0750
ID: COLA2011082 |
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